CHAMIZAL ARBITRATION 



UNITED STATES AND 
MEXICO 

MINUTES OF THE MEETINGS OF THE INTERNATIONAL 
BOUNDARY COMMISSION 

JUNE 10 AND 15, 1911 
CONTAINING THE 

AWARD IN THE CHAMIZAL CASE 



DISSENTING OPINIONS OF THE AMERICAN AND MEXICAN 

COMMISSIONERS, AND THE PROTEST OF THE 

AGENT OF THE UNITED STATES 



WASHINGTON 
1911 



CHAMIZAL ARBITRATION 



UNITED STATES AND 
MEXICO 

MINUTES OF THE MEETINGS OF THE INTERNATIONAL 
BOUNDARY COMMISSION 

JUNE 10 AND 15, 1911 
CONTAINING THE 

AWARD IN THE CHAMIZAL CASE 



DISSENTING OPINIONS OF THE AMERICAN AND MEXICAN 

COMMISSIONERS, AND THE PROTEST OF THE 

AGENT OF THE UNITED STATES 



WASHINGTON 
1911 



f/Y\' 



• 



r^v-l 




CHAMIZAL ARBITRATION, UNITED STATES AND MEXICO. 



MINUTES OF MEETING OF THE JOINT COMMISSION, JUNE 10, 1911. 

Ei/ Paso, Texas, June 10, 1911. 
The Joint Commission having been in session every day since 
the close of argument on June 2, 191 1, discussing evidence and 
argument presented by the agents and counsel of the two Govern- 
ments, proceeded to ballot for the purpose of arriving at a decision 
upon the following points, to wit: 

I. Was the boundary line established by the Treaties of 1848 
and 1853 along the Rio Grande a fixed and invariable line? 

Upon this question the Mexican Commissioner voted yes; the 
United States Commissioner voted no; the Presiding Commissioner 
voted no. 

II. Has the United States of America acquired title to the 
Chamizal tract by prescription ? 

Upon this question the Mexican Commissioner voted no; the 
United States Commissioner voted no; the Presiding Commis- 
sioner voted no. 

III. Does the Treaty of 1884 apply to all changes in the river 
subsequent to the survey of 1852 ? 

Upon this question the Mexican Commissioner voted no; the 
United States Commissioner voted yes; the Presiding Commis- 
sioner voted yes. 

IV. Was the whole of the Chamizal tract, as defined in the Con- 
vention of 1910, formed by slow and gradual erosion and deposit 
of alluvium within the meaning of Article I of the Convention of 
1884? 

Upon this question the Mexican Commissioner voted no; the 
United States Commissioner voted yes; the Presiding Commis- 
sioner voted no. 

V. Was the formation of the Chamizal tract up to 1864 due to 
slow and gradual erosion and deposit of alluvium within the 
meaning of article I of the Treaty of 1884? 

Upon this question the Mexican Commissioner voted yes; the 
United States Commissioner declined to vote for the following 
reasons : 

(3) 



4 chamizaIv arbitration: minutes of june 10, 191 1. 

1. Article 1 of the Treaty of June 24, 1910, specifically bounds 
the Chamizal tract with technical accuracy, while article 3 pro- 
vides that "The Commission shall decide solely and exclusively 
as to whether the international title to the Chamizal tract is in 
the United States of America or Mexico." 

The United States Commissioner does not believe that the Com- 
mission, in view of these provisions, is empowered to divide the 
Chamizal tract between the two countries. This position was 
specifically taken by counsel for the United States in argument 
and not denied by counsel on behalf of Mexico. The Commission 
in dividing the Chamizal tract is taking action which was neither 
requested nor contemplated by either party. 

2. The majority of the Commission in segregating the Chamizal 
tract is about to apply to some portion of the tract a standard not 
permitted by the treaties in force between the two countries. 

The Convention of 1884 (see articles 1 and 2) and the Conven- 
tion of 1889, establishing the present International Boundary 
Commission (see, particularly, article 4), recognize only two classes 
of changes in the river channel through natural causes, i. e., (a) 
through the slow and gradual erosion and deposit of alluvium 
(article 1, 1884), or erosion (article 4, 1889); (b) by the abandon- 
ment of an existing river bed and the opening of a new one (article 
1, 1884), or avulsion (article 4, 1889). 

The Convention of June 24, 19 10, whereby the Chamizal Case 
is "again referred to the International Boundary Commission, 
which shall be enlarged by the addition, for the purposes of the 
consideration and decision of the aforesaid difference only" (arti- 
cle 2), i. e., "said Commission established by the Convention of 
1889" (preamble) in no wise modifies the provisions of the Con- 
ventions of 1884 and 1889, which confines the Commission to the 
consideration of the two classes of changes aforesaid, i. e., erosion 
and avulsion. 

The Presiding Commissioner voted yes. 

VI. Was the whole erosion which occurred in 1864 and after that 
date slow and gradual within the meaning of the Treaty of 1884? 

Upon this question the Mexican Commissioner voted that it 
was not slow and gradual from 1864 to 1868. He has no data to 
cover each of the succeeding years. 

The United States Commissioner declined to vote, for the same 
reasons stated with respect to the period from 1852 to 1864. 

He furthermore declined to vote because the location of the 
river in 1864 is wholly obliterated and its position can never be 



VOTES OF COMMISSIONERS. 5 

re-established in any one of the points of its former location, and, 
therefore, even if the Commission were empowered to render a 
decision segregating that portion of the tract formed after 1864, 
provided the channel of 1864 could be located, a decision to this 
effect under the present circumstances, when the channel can by 
no possibility be relocated, is void because it is indeterminate, 
indefinite and impossible of accomplishment. 

He furthermore pointed out that even if the Commission were 
empowered to segregate the Chamizal tract and even if it were 
possible to relocate the river channel of 1864 and even if the Com- 
mission were empowered to ingraft upon the treaty a new class of 
changes, i. e., some form of erosion which was not slow and gradual 
within the meaning of the treaty, nevertheless, the evidence con- 
clusively shows that this hypothetical violent and rapid erosion 
could in no event have taken place except at certain points where 
the river impinged upon the banks with peculiar force, and not 
along the whole three miles where the tract bounds upon the river. 
Even if it be conceded, as alleged, that land at certain points in 
Mexico was destroyed by rapid and violent erosion, and that the 
Boundary Commission during the last seventeen years has been in 
error in construing such erosion as being within the terms of 
Article I of the Convention of 1884, nevertheless, the undisputed 
evidence in the record shows that the entire tract on the north 
bank of the river was formed by slow and gradual deposit of 
alluvium. It was, in his judgment, in any event, the duty of 
Mexico to establish by the preponderance of evidence the identity 
of any portion of land within the Chamizal tract alleged to have 
been formed as a result of violent and rapid erosion. 
. The Presiding Commissioner voted that the erosion which was 
caused by the flood of 1864 was not slow and gradual within the 
meaning of the Convention of 1884, nor was the erosion during the 
succeeding years up to and including 1868 of that character. 
There are no data, and it is immaterial to decide whether the erosion 
subsequent to that date was slow and gradual or not, inasmuch as 
the river had ceased to be the international boundary. 

The United States Commissioner furthermore stated that he 
desired to file a dissenting opinion in which he would discuss the 
merits of the questions before the Commission on the points as to 
which he was compelled to dissent, as well as to elaborate the 
grounds which induced him to believe that the Commission by its 
decision has departed from the terms of the submission. 



6 chamizal arbitration: MINUTES OF JUNE io, 191 1. 

The Presiding Commissioner was requested to prepare the award 
in accordance with the above votes and the American and Mexican 
Commissioners to submit their opinions on the points on which they 
dissent. 

The Commission then adjourned until further notice. 



AWARD. 

Before the Intern ational Boundary Commission, Enlarged 
by the Convention Between the United States and 
Mexico of June 24, 19 10. 

In the matter of the international title to the Chamizal tract. 

PREAMBLE. 

Whereas a convention between the United States of America 
and the United States of Mexico for the arbitration of the differ- 
ences which have arisen between the two governments as to the 
international title to the Chamizal tract, was concluded and 
signed by their respective plenipotentiaries at Washington on the 
twenty-fourth day of June, 19 10, which is as follows: 

Convention for the Arbitration of the Chamizal Case. 

The United States of America and the United States of Mexico, 
desiring to terminate, in accordance with the various treaties and 
conventions now existing between the two countries, and in 
accordance with the principles of international law, the differences 
which have arisen between the two Governments as to the inter- 
national title to the Chamizal tract, upon which the members of 
the International Boundary Commission have failed to agree, and 
having determined to refer these differences to the said Commis- 
sion, established by the Convention of 1889, which for this case 
only shall be enlarged as hereinafter provided, have resolved to 
conclude a Convention for that purpose, and have appointed as 
their respective Plenipotentiaries: 

The President of the United States of America, Philander C. 
Knox, Secretary of State of the United States of America; and 

The President of the United States of Mexico, Don Francisco 
Leon de la Barra, Ambassador Extraordinary and Plenipotentiary 
of the United States of Mexico at Washington, 

Who, after having exhibited their respective full powers, and 
having found the same to be in good and due form, have agreed 
upon the following articles : 

ARTICLE 1. 

The Chamizal tract in dispute is located at El Paso, Texas, and 
Ciudad Juarez, Chihuahua, and is bounded westerly and southerly 
by the middle of the present channel of the Rio Grande, otherwise 

(7) 



8 chamizal arbitration: minutes of june 10, 191 1. 

called Rio Bravo del Norte, easterly by the middle of the aban- 
doned channel of 1901, and northerly by the middle of the channel 
of the river as surveyed by Emory and Salazar in 1852, and is 
substantially as shown on a map on a scale of 1-5,000, signed by 
General Anson Mills, Commissioner on the part of the United 
States, and Sefior Don F. Javier Osorno, Commissioner on the part 
of Mexico, which accompanies the report of the International 
Boundary Commission, in case No. 13, entitled "Alleged Obstruc- 
tion in the Mexican End of the El Paso Street Railway Bridge and 
Backwaters Caused by the Great Bend in the River Below," and 
on file in the archives of the two Governments. 

article 11. 

The difference as to the international title of the Chamizal tract 
shall be again referred to the International Boundary Commission, 
which shall be enlarged by the addition, for the purposes of the 
consideration and decision of the aforesaid difference only, of a 
third Commissioner, who shall preside over the deliberations of the 
Commission. This Commissioner shall be a Canadian jurist and 
shall be selected by the two Governments by common accord, or, 
failing such agreement, by the Government of Canada, which shall 
be requested to designate him. No decision of the Commission 
shall be perfectly valid unless the Commission shall have been fully 
constituted by the three members who compose it. 

ARTICLE hi. 

The Commission shall decide solely and exclusively as to whether 
the international title to the Chamizal tract is in the United States 
of America or Mexico. The decision of the Commission, whether 
rendered unanimously or by majority vote of the Commissioners, 
shall be final and conclusive upon both Governments, and without 
appeal. The decision shall be in writing and shall state the reasons 
upon which it is based. It shall be rendered within thirty days 
after the close of the hearings. 

ARTICLE iv. 

Each Government shall be entitled to be represented before the 
Commission by an Agent and such Counsel as it may deem neces- 
sary to designate ; the Agent and Counsel shall be entitled to make 
oral argument and to examine and cross-examine witnesses and, 
provided that the Commission so decides, to introduce further 
documentary evidence. 

ARTICLE v. 

On or before December 1, 1910, each Government shall present 
to the Agent of the other party two or more printed copies of its 
case, together with the documentary evidence upon which it relies. 



award: opinion of presiding commissioner. 9 

It shall be sufficient for this purpose if each Government delivers 
the copies and documents aforesaid at the Mexican Embassy at 
Washington or at the American Embassy at the City of Mexico, 
as the case may be, for transmission. As soon thereafter as 
possible, and within ten days, each party shall deliver two printed 
copies of its case and accompanying documentary evidence to 
each member of the Commission. Delivery to the American and 
Mexican Commissioners may be made at their offices in El Paso, 
Texas; the copies intended for the Canadian Commissioner may 
be delivered at the British Embassy at Washington or at the 
British Legation at the City of Mexico. 

On or before February i , 1 9 1 1 , each Government may present 
to the Agent of the other a counter-case, with documentary 
evidence, in answer to the case and documentary evidence of the 
other party. The counter-case shall be delivered in the manner 
provided in the foregoing paragraph. 

The Commission shall hold its first session in the city of El Paso, 
State of Texas, where the offices of the International Boundary 
Commission are situated, on March 1, 191 1, and shall proceed to 
the trial of the case with all convenient speed, sitting either at 
El Paso, Texas, or Ciudad Juarez, Chihuahua, as convenience may 
require. The Commission shall act in accordance with the pro- 
cedure established in the Boundary Convention of 1889. It shall, 
however, be empowered to adopt such rules and regulations as it 
may deem convenient in the course of the case. 

At the first meeting of the three Commissioners each party shall 
deliver to each of the Commissioners and to the Agent of the other 
party, in duplicate, with such additional copies as may be required, 
a printed argument showing the points relied upon in the case and 
counter-case, and referring to the documentary evidence upon 
which it is based. Each party shall have the right to file such 
supplemental printed brief as it may deem requisite. Such briefs 
shall be filed within ten days after the close of the hearings, unless 
further time be granted by the Commission. 

ARTICLE VI. 

Each Government shall pay the expenses of the presentation 
and conduct of its case before the Commission; all other expenses 
which by their nature are a charge on both Governments, including 
the honorarium for the Canadian Commissioner, shall be borne by 
the two Governments in equal moieties. 

article vii. 

In case of the temporary or permanent unavoidable absence of 
any one of the Commissioners, his place will be filled by the 
Government concerned, except in the case of the Canadian jurist. 
The latter under any like circumstances shall be replaced in 
accordance with the provisions of this Convention. 



io chamizal arbitration: minutes of june 10, 191 1. 

ARTICLE VIII. 

If the arbitral award provided for by this Convention shall be 
favorable to Mexico, it shall be executed within the term of two 
years, which can not be extended, and which shall be counted 
from the date on which the award is rendered. During that 
time the status quo shall be maintained in the Chamizal tract on 
the terms agreed upon by both Governments. 

article ix. 

By this Convention the Contracting Parties declare to be null 
and void all previous propositions that have reciprocally been 
made for the diplomatic settlement of the Chamizal Case; but 
each party shall be entitled to put in evidence by way of informa- 
tion such of this official correspondence as it deems advisable. 

article x. 

The present Convention shall be ratified in accordance with 
the constitutional forms of the contracting parties and shall take 
effect from the date of the exchange of its ratifications. 

The ratifications shall be exchanged at Washington as soon as 
possible. 

In witness whereof, the respective plenipotentiaries have signed 
the above articles, both in the English and Spanish languages, and 
have hereunto affixed their seals. 

Done in duplicate at the city of Washington, this 24th day of 
June, one thousand nine hundred and ten. 

And whereas the said convention was duly ratified on both 
parts, and the ratifications of the two governments were exchanged 
at the City of Washington on the twenty-fourth day of January, 
1911. 

And whereas on the fifth day of December, 19 10, the plenipoten- 
tiaries who negotiated and signed the said convention of June 24, 
1 9 10, being thereunto duly empowered by their respective govern- 
ments, agreed upon a supplementary protocol, which is as follows: 

Whereas it has become necessary, owing to the lapse of time, that 
the dates fixed by Article V of the before-mentioned convention 
be changed, it is hereby agreed as follows: 

The date for the presentation of the respective cases and docu- 
mentary evidence is fixed for February 15, 191 1; 

The date for the presentation of the respective counter-cases 
and documentary evidence is fixed for April 15, 1911; 

The date for the first session of the Commission is fixed for May 

15, 1911; 

All other provisions of the Convention of June 24, 19 10, remain 
unchanged. 



award: opinion of presiding commissioner. II 

This supplementary protocol shall be ratified in accordance 
with the constitutional forms of the Contracting Parties and 
shall take effect from the date of the exchange of its ratifications. 

The ratifications of the Convention and the supplementary 
protocol shall be exchanged at Washington as soon as possible. 

In witness whereof, the respective Plenipotentiaries have signed 
the above supplementary protocol, both in the English and 
Spanish languages, and have hereunto affixed their seals. 

Done in duplicate at the City of Washington, this fifth day of 
December, one thousand nine hundred and ten. 

Philander C. Knox, [seal] 

F. L. DE LA BARRA. [SEAL] 

And whereas the parties to the said convention of 24th of June, 
1 9 10, have, by common accord, in conformity with Article II 
thereof, enlarged the said International Boundary Commission by 
the addition, for the purposes of the consideration and decision 
of the aforesaid difference, of a third Commissioner, viz.: 

Eugene Lafleur, one of His Britannic Majesty's Counsel, Doctor 
of Civil Law and former Professor of International Law at McGill 
University, who, together with 

Anson Mills, Brigadier General of the United States Army 
(retired) , Member of the American Geographical Society, American 
Commissioner of the International Boundary Commission, and 

Fernando Beltram y Puga, Civil Engineer, Mexican Commis- 
sioner of the International Boundary Commission, Member of the 
Geographical Society of Mexico and of the American Geographical 
Society, Member of the Society of Civil Engineers and Architects 
of Mexico, 

Have been constituted as a Commission for the decision as to 
whether the international title to the Chamizal tract is in the 
United States of America or in the United States of Mexico. 

And whereas the agents of the parties to the said Convention 
have duly, and in accordance with the terms of the Convention, 
communicated to this Commission their cases, countercases, 
printed arguments and other documents. 

And whereas the agents and counsel for the parties have fully 
presented to this Commission their oral arguments during the 
sittings held at the City of El Paso between the first assembling 
of the Commission on the 15th May, 191 1, to the close of the 
hearing on the 2nd June, 191 1. 

Now, therefore, this Commission, having carefully considered 
the said convention, cases, countercases, printed and oral argu- 



12 CHAMIZAL ARBITRATION: MINUTES OF JUNE IO, 1911. 

merits, and the documents presented by either side, after due 
deliberation, makes the following decision and award: 

The Chamizal tract consists of about six hundred acres, and lies 
between the old bed of the Rio Grande, as it was surveyed in 1852, 
and the present bed of the river, as more particularly described 
in article 1 of the Convention of 19 10. It is the result of changes 
which have taken place through the action of the water upon the 
banks of the river causing the river to move southward into 
Mexican territory. 

With the progressive movement of the river to the south, the 
American city of El Paso has been extending on the accretions 
formed by the action of the river on its north bank, while the 
Mexican city of Juarez to the south has suffered a correspondingly 
loss of territory. 

By the Treaties of 1848 and 1853 the Rio Grande, from a point 
a little higher than the present City of El Paso to its mouth in the 
Gulf of Mexico, was constituted the boundary line between the 
United States and Mexico. 

The contention on behalf of the United States of Mexico is that 
this dividing line was fixed, under those treaties, in a permanent 
and invariable manner, and consequently that the changes which 
have taken place in the river have not affected the boundary line 
which was established and marked in 1852. 

On behalf of the United States of America it is contended that 
according to the true intent and meaning of the Treaties of 1848 
and 1853, if the channel of the river changes by gradual accretion 
the boundary follows the channel, and that it is only in case of a 
sudden change of bed that the river ceases to be the boundary, 
which then remains in the abandoned bed of the river. 

It is further contended on behalf of the United States of America 
that by the terms of a subsequent boundary Convention in 1884, 
rules of interpretation were adopted which became applicable to 
all changes in the Rio Grande, which have occurred since the river 
became the international boundary, and that the changes which 
determined the formation of the Chamizal tract are changes result- 
ing from slow and gradual erosion and deposit of alluvion within 
the meaning of that Convention, and consequently changes which 
left the channel of the river as the international boundary line. 

The Mexican Government, on the other hand, contends that 
the Chamizal tract having been formed before the coming in 
force of the Convention of 1884, that convention was not retro- 
active and could not affect the title to the tract, and further con- 



award: opinion of presiding commissioner. 13 

tends that even assuming the case to be governed by the Con- 
vention of 1884 the changes in the channel have not been the 
result of slow and gradual erosion and deposit of alluvion. 

Finally the United States of America have set up a claim to the 
Chamizal tract by prescription, alleged to result from the un- 
disturbed, uninterrupted, and unchallenged possession of the 
territory since the Treaty of 1848. 

In 1889 the Governments of the United States and of Mexico 
by a convention created the International Boundary Commission 
for the purpose of carrying out the principles contained in the 
Convention of 1884 and to avoid the difficulties occasioned by 
the changes which take place in the bed of the Rio Grande where it 
serves as the boundary between the two republics, and for other 
purposes enumerated in Article I of the Convention of 1889. 

At a session of the Boundary Commissioners, held on the 28th 
September, 1894, the Mexican Commissioner presented the 
papers in a case known as "El Chamizal No. 4. " These included 
a complaint made by Pedro Ignacio Garcia, who alleged, in sub- 
stance, that he had acquired certain property formerly lying on 
the south side of the Rio Grande, known as El Chamizal, which, 
in consequence of the abrupt and sudden change of current of the 
Rio Grande, was now on the north side of the river, and within 
the limits of El Paso, Texas. This claim was examined by the 
International Boundary Commissioners, who heard witnesses 
upon the facts, and who, after consideration, were unable to come 
to any agreement, and so reported to their respective governments. 

As a result of this disagreement the Convention of 24th June, 
1 9 10, was signed, and the decision of the question was submitted 
to the present Commission. 

FIXED EINE THEORY. 

Article V of the Treaty of Guadalupe Hidalgo of 1848 provides 
for a boundary between the United States and Mexico in the 
following terms: 

The boundary line between the two Republics shall commence 
in the Gulf of Mexico, three leagues from land, opposite the mouth 
of the Rio Grande, otherwise called Rio Bravo del Norte, or op- 
posite the mouth of its deepest branch, if it should have more 
than one branch emptying directly into the sea; from thence, up 
the middle of that river, following the deepest channel, where it 
has more than one, to the point where it strikes the southern 
boundary of New Mexico; thence, westwardly, along the whole 



14 CHAMIZAL ARBITRATION: MINUTES OF JUNE IO, 1911. 

southern boundary of New Mexico (which runs north of the town 
called Paso) to its western termination; thence, northward, along 
the western line of New Mexico until it intersects the first branch 
of the river Gila ; (or if it should not intersect any branch of that 
river, then, to the point on the said line nearest to such branch, and 
thence in a direct line to the same ;) thence down the middle of the 
said branch and of the said river, until it empties into the Rio 
Colorado; thence, across the Rio Colorado, following the division 
line between Upper and Lower California, to the Pacific Ocean. 

The southern and western limits of New Mexico, mentioned in 
this article, are those laid down in the map entitled "Map of the 
United Mexican States, as organized and defined by -various Acts of 
the Congress of said Republic, and constructed according to the best 
authorities. Revised edition. Published at New York in 1847 by 
J. Disturnell;" of which map a. copy is added to this treaty, bear- 
ing the signatures and seals of the undersigned Plenipotentiaries. 
And, in order to preclude all difficulty in tracing upon the ground 
the limit separating Upper from Lower California, it is agreed that 
the said limit shall consist of a straight line, drawn from the middle 
of the Rio Gila, where it unites with the Colorado, to a point on 
the coast of the Pacific Ocean, distant one marine league due south 
of the southernmost point of the port of San Diego, according to the 
plan of said port made in the year 1782, by Don Juan Panto ja, 
second sailing-master of the Spanish fleet, and published at Madrid 
in the year 1802, in the atlas to the voyage of the schooners Sutil 
and Mexicana; of which plan a copy is hereunto added, signed and 
sealed by the respective Plenipotentiaries. 

In order to designate the boundary line with due precision, upon 
authoritative maps, and to establish upon the ground landmarks 
which shall show the limits of both republics, as described in the 
present article, the two Governments shall each appoint a com- 
missioner and a surveyor, who, before the expiration of one year 
from the date of the exchange of ratifications of this treaty, shall 
meet at the Port of San Diego, and proceed to run and mark 
the said boundary in its whole course to the mouth of the Rio 
Bravo del Norte. They shall keep journals and make out plans of 
their operations; and the result agreed upon by them shall be 
deemed a part of this treaty, and shall have the same force as if 
it were inserted therein. The two Governments will amicably 
agree regarding what may be necessary to these persons, and also 
as to their respective escorts, should such be necessary. 

The boundary line established by this article shall be religiously 
respected by each of the two republics, and no change shall ever 
be made therein, except by the express and free consent of both 
nations, lawfully given by the General Government of each, in 
conformity with its own constitution. 

The fluvial portion of the boundary called for by the above 
treaty, in so far as the Rio Grande is concerned, extending from its 



award: opinion of presiding commissioner. 15 

mouth to the point where it strikes the southern boundary of New 
Mexico, appears to have been fixed by the surveys of the Inter- 
national Boundary Commission in 1852. 

In 1853, in consequence of a dispute as to the land boundary and 
the acquisition of a portion of territory now forming part of New 
Mexico and Arizona, known as the "Gadsden Purchase," the 
boundary treaty of 1853 was signed, the first article of which deals 
with the boundary as follows : 

The Mexican Republic agrees to designate the following as her 
true limits with the United States for the future: Retaining the 
same dividing line between the two Californias as already defined 
and established, according to the fifth article of the treaty of 
Guadalupe Hidalgo, the limits between the two republics shall be 
as follows: Beginning in the Gulf of Mexico, three leagues from 
land, opposite the mouth of the Rio Grande, as provided in the 
fifth article of the treaty of Guadalupe Hidalgo; thence, as defined 
in the said article, up the middle of that river to the point where 
the parallel of 31 ° 47' north latitude crosses the same; thence due 
west one hundred miles; thence south to the parallel of 31 ° 20', 
north latitude; thence along the said parallel of 31 ° 20' to the 1 1 ith 
meridian of longitude west of Greenwich ; thence in a straight line 
to a point on the Colorado River twenty English miles below the 
junction of the Gila and Colorado Rivers; thence up the middle 
of the said river Colorado until it intersects the present line 
between the United States and Mexico. 

For the performance of this portion of the treaty, each of the 
two Governments shall nominate one commissioner, to the end 
that, by common consent, the two thus nominated, having met 
in the city of Paso del Norte, three months after the exchange of 
the ratifications of this treaty, may proceed to survey and mark 
out upon the land the dividing line stipulated by this article, 
where it shall not have already been surveyed and established by 
the mixed commission, according to the treaty of Guadalupe, 
keeping a journal and making proper plans of their operations. 
For this purpose, if they should judge it necessary, the contract- 
ing parties shall be at liberty each to unite to its respective com- 
missioner, scientific or other assistants, such as astronomers and 
surveyors, whose concurrence shall not be considered necessary for 
the settlement and ratification of a true line of division between 
the two republics; that line shall be alone established upon which 
the commissioners may fix, their consent in this particular being 
considered decisive and an integral part of this treaty, without 
necessity of ulterior ratification or approval, and without room 
for interpretation of any kind by either of the parties contracting. 

The dividing line thus established shall, in all time, be faithfully 
respected by the two Governments, without any variation therein, 
unless of the express and free consent of the two, given in con- 



1 6 chamizal arbitration: minutes of june io, 191 1. 

formity to the principles of the law of nations, and in accordance 
with the constitution of each country, respectively. 

In consequence, the stipulation in the fifth article of the treaty 
of Guadalupe upon the boundary line therein described is no 
longer of any force, wherein it may conflict with that here estab- 
lished, the said line being considered annulled and abolished 
wherever it may not coincide with the present, and in the same 
manner remaining in full force where in accordance with the same. 

The Treaty of Guadalupe Hidalgo, signed on the 2nd February, 
1848, provides that the boundary line between the two republics 
from the Gulf of Mexico shall be the middle of the Rio Grande, 
following the deepest channel where it has more than one, to the 
point where it strikes the southern boundary of New Mexico. It 
is conceded, on both sides, that if this provision stood alone it 
would undoubtedly constitute a natur al, or arcifinious, boundary 
between the two nations and that according to well-known prin- 
ciples of international law, this fluvial boundary would continue, 
notwithstanding modifications of the course of the river caused by 
gradual accretion on the one bank or degradation on the other 
bank; whereas if the river deserted its original bed and forced for 
itself a new channel in another direction the boundary would re- 
main in the middle of the deserted river bed. It is contended, 
however, on behalf of Mexico, that the provisions in the treaty 
providing for a designation of the boundary line with due precision, 
upon authoritative maps, and for establishing upon the grounds 
landmarks showing the limits of both republics, and the direction 
to commissioners and surveyors to run and mark the boundary 
in its full course to the mouth of the Rio Grande, coupled with the 
final stipulation that the boundary line thus established should be 
religiously respected by the two republics, and no change should 
ever be made therein, except by the express and free consent of 
both nations, takes this case out of the ordinary rules of interna- 
tional law, and by a conventional agreement converts a natural, 
or arcifinious, boundary into an artificial and invariable one. In 
support of this contention copious references have been made to the 
civil law, distinguishing between lands whose limits were estab- 
lished by fixed measurements (agri limitati) and arcifinious lands, 
which were not so limited {agri arcifinii) . These two classes of 
lands were sometimes contrasted by saying that arcifinious lands 
were those which had natural boundaries, such as mountains and 
rivers, while limited estates were those which had fixed measure- 
ments. As a consequence of this distinction the Roman law 



award: opinion of presiding commissioner. 17 

denied the existence of the right of alluvion in favor of the limited 
estates which it was the custom to distribute among the Roman 
generals, and subsequently to the legionaries, out of conquered 
territory. This restriction of the ordinary rights appurtenant to 
riparian ownership is however considered, by the best authorities, 
to have been an exceptional provision applicable only to the case 
above mentioned, and one of the principal authorities relied on by 
the Mexican counsel (A. Plocquo, Legislation des caux et de la navi- 
gation, Vol. 2, page 66) clearly establishes that the mere fact that 
a riparian proprietor holds under a title which gives him a speci- 
fied number of acres of land does not prevent him from profiting 
by alluvion. The difficulty in this case does not arise from the 
fact that the territories in question are established by any measure- 
ment, but because the boundary is ordered to be run and marked 
along the fluvial portion as well as on the land, and on account of 
the further stipulation that no change shall ever be made therein. 
Do these provisions and expression, in so far as they refer to the 
fluvial portion of the boundary, convert it into an artificial bound- 
ary which will persist notwithstanding all changes in the course 
of the river ? In one sense it may be said that the adoption of a 
fixed and invariable line, so far as the river is concerned, would 
not be a perpetual retaining of the river boundary provided for by 
the treaty, and would be at variance with the agreement of the 
parties that the boundary should forever run in the middle of the 
river. The direction as to marking the course of the river as it 
existed at the time of the Treaty of 1848 is not inconsistent with 
a fluvial line varying only in accordance with the general rules of 
international law, by erosion on one bank and alluvial deposits on 
the other bank, for this marking of the boundary may serve the 
purpose of preserving a record of the old river bed to serve as a 
boundary in cases in which it cuts a new channel. 

Numerous treaties containing provisions as to river boundaries 
have been referred to by the two parties, showing that in some 
cases conventional arrangements are made that the river simpliciter 
shall be the boundary, or that the boundary shall run along the 
middle of the river, or along the thalweg or center or thread of the 
channel, while a small number of treaties contain elaborate dispo- 
sitions for a fixed line boundary, notwithstanding the alterations 
which may take place in the river, with provision, however, for 
periodical readjustments in certain specified cases. The difficulty 
with these instances is that no cases appear to have arisen upon 
5591— 11 — 2 



1 8 CHAMIZAL ARBITRATION: MINUTES OF JUNE IO, 191 1. 

the treaties in question and their provisions throw little, if any, 
light upon the present controversy. In one case only among those 
cited there appears to have been a decision by the Court of Cassa- 
tion in France (Dalloz, 1858, Part 1, page 401) holding that when 
a river separates two departments or two districts, the boundary 
is fixed in an irrevocable manner along the middle of the bed of the 
river as it existed at the time of the establishment of the boundary 
and that it is not subject to any subsequent variation, notwith- 
standing the changes in the river. Whatever authority this de- 
cision may have in the delimitation of departmental boundaries in 
France, it does not seem to be in accordance with recognized prin- 
ciples of international law, if, as appears from the report, it holds 
that the mere designation of a river as a boundary establishes a 
fixed and invariable line. 

The above observations as to the Treaty of 1848 would seem to 
apply to the Gadsden Treaty of 1853, taken by itself, for it pro- 
vides, in similar language, that the boundary shall follow the 
middle of the Rio Grande, that the boundary line shall be estab- 
lished and marked, and that the dividing line shall in all time be 
faithfully respected by the two governments without any variation 
therein. 

While, however, the Treaty of 1848 standing alone, or the 
Treaty of 1853, standing alone, might seem to be more con- 
sistent with the idea of a fixed boundary than one which would 
vary by reason of alluvial processes, the language of the Treaty 
of 1853, taken in conjunction with the existing circumstances, 
renders it difficult to accept the idea of a fixed and invariable 
boundary. During the five years which elapsed between the 
two treaties, notable variations of the course of the Rio Grande 
took place, to such an extent that surveys made in the early part 
of 1853, at intervals of six months, revealed discrepancies which 
are accounted for only by reason of the changes which the river 
had undergone in the meantime. Notwithstanding the existence 
of such changes, the Treaty of 1853 reiterates the provision that 
the boundary line runs up the middle of the river, which could 
not have been an accurate statement upon the fixed line theory. 

Some stress has been laid upon the observations contained in 
the records of the Boundary Commissioners that the line they 
were fixing would be thenceforth invariable, but apart from the 
inconclusive character of this conversation, it seems clear that in 
making any remarks of this nature, the Boundary Commissioners 



award: opinion of presiding commissioner. 19 

were exceeding their mandate, and that their views as to the 
proper construction of the treaties under which they were working 
could not in any way bind their respective governments. 

In November, 1856, the draft for the proposed report of the 
Boundary Commissioners for determining the boundary between 
Mexico and the United States under the Treaty of 1853 was sub- 
mitted by the Secretary of the Interior of the United States to the 
Honorable Caleb Cushing for his opinion as to whether the bound- 
ary line under that treaty shifted with changes taking place in the 
bed of the river, or whether the line remained constant where the 
main course of the river ran as represented by the maps accom- 
panying the report of the Commissioners. The opinion of Mr. 
Cushing is a valuable contribution to the subject by an authority 
on international law. After consideration of the provisions of 
the treaty, and an examination of a great number of authorities 
upon the subject, Mr. Cushing reported that the Rio Grande 
retained its function of an international boundary, notwithstand- 
ing changes brought about by accretion to one bank and the deg- 
radation of the other bank, but that, on the other hand, if the 
river deserted its original bed and forced for itself a new channel 
in another direction, then the nation through whose territory the 
river thus broke its way did not lose the land so separated; the 
international boundary in that case remaining in the middle of 
the deserted river bed. 

This opinion was transmitted to the Mexican Legation at 
Washington and acknowledged by Senor Romero, then Mexican 
Ambassador at Washington, who, without in any way committing 
his Government, stated his own personal acquiescence in the 
principles enunciated as being equitable and founded upon the 
teachings of the most accredited expositors of international law. 
He further stated that he was transmitting a copy of the opinion 
to his Government. There does not appear to have been any 
expression of opinion by the Mexican Government at that time 
as to the soundness of the views expressed by the Hon. Mr. 
Cushing. 

From the last mentioned date until the signing of the Conven- 
tion of 1884 a considerable amount of diplomatic correspondence 
took place as to the meaning and effect of the boundary treaties 
of 1848 and 1853. Without going unto all the details of this 
correspondence, which has been fully discussed in the printed and 
oral arguments of the parties, it is sufficient to say that during 



20 chamizae arbitration: minutes of june 10, 191 1. 

that period, with the exception of certain statements contained in 
a letter of Mr. Frelinghuysen, which will be adverted to later, the 
Government of the United States consistently adhered to the 
principles enunciated by Attorney-General Gushing. On the 
Mexican side the correspondence reveals more fluctuations of 
opinion; the writers sometimes indicating their view that the 
boundary created by the treaties in question was a fixed line, but 
more frequently qualifying such statements by making an excep- 
tion in the case of slow and successive increases resulting from 
alluvial deposits. 

While considerable importance appeared to be attached by the 
parties to various expressions contained in this correspondence, 
the Commissioners, at an early stage in the argument, expressed 
their view that neither of the high contracting parties should be 
bound by the unguarded language contained in many of the 
letters. The only real importance to be attached to this cor- 
respondence is that it shows conclusively that a considerable 
doubt existed as to the meaning and effect of the boundary 
treaties of 1848 and 1853. 

However strongly one might be disposed to think that the 
Treaty of 1848, taken by itself, or the Treaty of 1853, taken by 
itself, indicated an intention to establish a fixed line boundary, it 
would be difficult to say that the question is free from doubt, in 
view of the opinion expressed by so high an authority as the Hon. 
Mr. Cushing upon the very point at issue, and in view of the 
occasional concurrence in this opinion by some of the higher 
Mexican officials at the time it was given. 

It is in consequence of this legitimate doubt as to the true con- 
struction of the boundary treaties of 1848 and 1853 that the sub- 
sequent course of conduct of the parties, and their formal conven- 
tions, may be resorted to as aids to construction. In the opinion 
of the majority of this Commission the language of the subsequent 
conventions, and the consistent course of conduct of the high 
contracting parties, is wholly incompatible with the existence of a 
fixed line boundary. 

In 1884 the following boundary convention was concluded 
between the two republics: 

Boundary Convention, Rio Grande and Rio Colorado. 

Convention between the United States of America and the United 
States of Mexico touching the boundary line between the two 
countries where it follows the bed of the Rio Grande and the Rio 
Colorado. 



award: opinion of presiding COMMISSIONER. 2 1 

Whereas, in virtue of the 5th article of the Treaty of Guadalupe 
Hidalgo between the United States of America and the United 
States of Mexico, concluded February 2, 1848, and of the first 
article of that of December 30, 1853, certain parts of the dividing 
line between the two countries follow the middle of the channel of 
the Rio Grande and the Rio Colorado, to avoid difficulties which 
may arise through the changes of channel to which those rivers 
are subject through the operation of natural forces, the Govern- 
ment of the United States of America and the Government of the 
United States of Mexico have resolved to conclude a convention 
which shall lay down rules for the determination of such questions, 
and have appointed as their Plenipotentiaries : 

The President of the United States of America, Frederick T. 
Frelinghuysen, Secretary of State of the United States; and the 
President of the United States of Mexico, Matias Romero, Envoy 
Extraordinary and Minister Plenipotentiary of the United Mexican 
States; 

Who, after exhibiting their respective Full Powers, found in good 
and due form, have agreed upon the following articles: 

article 1. 

The dividing line shall forever be that described in the aforesaid 
Treaty and follow the centre of the normal channel of the rivers 
named, notwithstanding any alterations in the banks or in the course 
of those rivers, provided that such alterations be effected by natural 
causes through the slow and gradual erosion and deposit of alluvium 
and not by the abandonment of an existing river bed and the 
opening of a new one. 

ARTICLE 11. 

Any other change, wrought by the force of the current, 
whether by the cutting of a new bed, or when there is more than 
one channel by the deepening of another channel than that which 
marked the boundary at the time of the survey made under the 
aforesaid Treaty, shall produce no change in the dividing line as 
fixed by the surveys of the International Boundary Commissions 
.in 1852 ; but the line then fixed shall continue to follow the middle 
of the original channel bed, even though this should become wholly 
dry or be obstructed by deposits. 

ARTICLE III. 

No artificial change in the navigable course of the river, by 
building jetties, piers, or obstructions which may tend to deflect 
the current or produce deposits of alluvium, or by dredging to 
deepen another than the original channel under the Treaty when 
there is more than one channel, or by cutting waterways to shorten 
the navigable distance, shall be permitted to affect or alter the 



22 CHAMIZAL ARBITRATION: MINUTES OF JUNE IO, 1911. 

dividing line as determined by the aforesaid commissions in 1852 
or as determined by Article I hereof and under the reservation 
therein contained; but the protection of the banks on either side 
from erosion by revetments of stone or other material not unduly 
projecting into the current of the river shall not be deemed an 
artificial change. 

ARTICLE iv. 

If any international bridge have been or shall be built across either 
of the rivers named, the point on such bridge exactly over the 
middle of the main channel as herein determined shall be marked 
by a suitable monument, which shall denote the dividing line for 
all the purposes of such bridge, notwithstanding any change in the 
channel which may thereafter supervene. But any rights other 
than in the bridge itself and in the ground on which it is built 
shall in event of any such subsequent change be determined in 
accordance with the general provisions of this convention. 

ARTICLE V. 

Rights of property in respect of lands which may have become 
separated through the creation of new channels as defined in 
Article II. hereof, shall not be affected thereby, but such lands shall 
continue to be under the jurisdiction of the country to which they 
previously belonged. 

In no case, however, shall this retained jurisdictional right affect 
or control the right of navigation common to the two countries 
under the stipulations of Article VII of the aforesaid Treaty of 
Guadalupe Hidalgo ; and such common right shall continue with- 
out prejudice throughout the actually navigable main channels of 
the said rivers, from the mouth of the Rio Grande to the point 
where the Rio Colorado ceases to be the international boundary, 
even though any part of the channel of said rivers, through the 
changes herein provided against, may be comprised within the 
territory of one of the two nations. 

ARTICLE VI. 

This convention shall be ratified by both parties in accordance 
with their respective constitutional procedure, and the ratifica- 
tions exchanged in the city of Washington as soon as possible. 

In witness whereof the undersigned Plenipotentiaries have here- 
unto set their hands and seals. 

Done at the city of Washington, in duplicate, in the English and 
Spanish languages, this twelfth day of November, A. D. 1884. 

The preamble of this convention states that it refers to those 
parts of the boundary line between the two countries which follow 
the bed of the Rio Grande and the Rio Colorado, and proceeds to 



award: opinion of presiding commissioner. 23 

explain that the portions of the dividing line between the two 
countries which follows the middle of the channel of the Rio 
Grande and the Rio Colorado are those mentioned in the Treaties 
of 1848 and 1853. The Convention thus seems to have been 
designed to apply to the whole of the Rio Grande in so far as the 
Treaties of 1848 and 1853 constitute this river as the dividing line 
between the two countries. The first article provides that the 
dividing line shall forever be that described in the aforesaid treaty, 
and follow the center of the normal channel of the rivers named, 
etc. This appears to be a clear recognition of the fact that the line 
which is, according to the agreement of the parties, to be hence- 
forth their boundary line, is also that which was created by the 
former treaties. It is, to that extent, a declaratory article import- 
ing into the Treaties of 1848 and 1853 the construction which the 
parties had determined to adopt, as the preamble states, in order 
"to avoid difficulties which may arise through the changes of 
channel to which those rivers are subject through the operation 
of natural forces," and "to lay down rules for the determination 
of such questions." 

On behalf of Mexico it has been strenuously contended that this 
convention was intended to operate in the future only, and that it 
should not be given a retroactive effect so as to apply to any 
changes which had previously occurred. Reference was made to a 
number of well-known authorities establishing the proposition 
that laws and treaties are not usually deemed to be retrospective 
in their effect. An equally well-known exception to this rule is 
that of laws or treaties which are intended to be declaratory, and 
which evidence the intention of putting an end to controversies 
by adopting a rule of construction applicable to laws or conven- 
tions which have been subject to dispute. The internal evidence 
contained in the Convention of 1884 appears to be sufficient to 
show an intention to apply the rules laid down for the determina- 
tion of difficulties which might arise through the changes in the 
river Rio Grande, whether these changes had occurred prior to or 
after the convention, and they appear to have been intended to 
codify the rules for the interpretation of the previous Treaties of 
1848 and 1853 which had formed the subject of diplomatic cor- 
respondence between the parties. While it is perfectly true that 
the convention was to be applied to disputes which might arise in 
future, it nowhere restricts these difficulties to future changes in 
the river. It expressly declares that by the Treaties of 1848 and 



24 CHAMIZAL ARBITRATION! MINUTES OF JUNE IO, 1911. 

1853, the dividing line had followed the middle of the river, and 
that henceforth the same rule was to apply. 

At the time this convention was signed all the great changes in 
the course of the Rio Grande had occurred, and practically the 
whole Chamizal tract had been formed. It appears, in fact, that 
the river of 1852 and the river of 1884 had no points in common, 
except points of intersection. It is. quite true that the parties 
may not have been aware of the entire separation of the old river 
bed from the new, from El Paso down to the Gulf of Mexico, but 
the fact remains that all the great and visible changes which are 
reported to have taken place during the floods extending from 
1864 to 1868 had done their work, and, in the case of the Chamizal 
tract, the changes had been so considerable in the upper portion 
of the river, which is proved to have been less liable to modifica- 
tions owing to the nature of its soil than the lower part of the river, 
that it formed the subject of much diplomatic correspondence. 

Having regard to the existence of such notable changes in the 
river bed, it is obvious that the Convention of 1884 would have 
been nugatory and inapplicable upon the hypothesis of a fixed line 
boundary, for when once the river had moved away from the fixed 
line into the territory of one or other of the two nations it was 
idle and useless to provide for erosive or other changes which 
might subsequently occur in its bed, the river being ex hypothesi, 
wholly in the territory of one or other of the nations on either 
side of the supposed fixed boundary. 

If any doubt could be entertained as to the intention of the 
parties in making this convention, it would disappear upon a 
consideration of the uniform and consistent manner in which it 
was subsequently declared by the two governments to apply to 
past as well as to future changes in the river. 

Copious references were made by the parties to the diplomatic 
correspondence which preceded this convention, but these com- 
munications, when closely examined, are inconclusive and add 
little or nothing to the language of the treaty. 

Equally inconclusive are the declarations made after the signing 
of the convention by high officers of States on both sides. For 
example, Senor Romero, on the 13th April, 1884, is reported to 
have said to the Mexican Department of Foreign Affairs that the 
treaty did not decide cases previous to its date, because it could 
not have retroactive effect, but could only be applied to such cases 
as might occur subsequently. On the other hand, the President 



award: opinion of presiding commissioner. 25 

of Mexico, in his message of April, 1891, recommending the adop- 
tion of the Convention of 1889, which created the Boundary Com- 
mission to carry out the provisions of the Convention of 1884, 
refers to the convention as being for the establishment of an inter- 
national commission to study and determine pending boundary 
questions, or those which may arise by reason of the variation of 
the course of the river. 

It would be useless to multiply citations from diplomatic cor- 
respondence, which is not always consistent, and which falls under 
the rule laid down by the Hague Tribunal in the recent award in 
the North Atlantic Coast Fisheries reference. Speaking of similar 
unguarded expressions contained in diplomatic correspondence the 
Presiding Commissioner expressed the following opinion, which 
seems applicable to a great many of the communications which 
have been relied upon by one or other of the parties in the present 
case: 

The Tribunal, unwilling to invest such expressions with an 
importance entitling them to affect the general question, considers 
that such conflicting or inconsistent expressions as have been 
exposed on either side are sufficiently explained by their relations 
to ephemeral phases of a controversy of almost secular duration, 
and should be held to be without direct effect on the principal 
and present issues. 

The same considerations apply to the correspondence with refer- 
ence to a claim to Morteritors Island, on which considerable 
reliance was placed by Mexican counsel as showing the abandon- 
ment of the United States of the view set forth in Attorney General 
Cushing's opinion, and an acceptance of the fixed line theory. 
Without discussing the details of this case, it is sufficient to say that 
the decision arrived at was in no way based upon the fixed bound- 
ary theory, but was a conclusion which was inevitable from the 
application of the Treaties of 1848 to 1853. It * s contended, how- 
ever, that certain expressions used by Mr. Secretary Frelinghuysen 
in his correspondence with the Mexican Government, when he was 
resisting the Mexican claim, are inconsistent with the idea of a 
fluvial boundary, and can only be explained on the theory that 
Mr. Frelinghuysen believed in the existence of a fixed boundary. 
Viewed in connection with the facts of the case, these expressions 
scarcely bear the interpretation which the Mexican counsel desire 
to put upon them, but even assuming that in the course of his 
argument on behalf of his department, Mr. Frelinghuysen com- 
mitted himself to the theorv that the United States could not 



26 CHAMIZAL ARBITRATION! MINUTES OF JUNE IO, 1911. 

recognize the annexation of its territory by accretion, such casual 
and unguarded language, which was certainly not relevant to the 
decision of the case upon the facts actually proved, could not bind 
his government any more than similar expressions used by Mexican 
high officials, above referred to, could bind their government. 

Far more conclusive is the course of action entered upon and 
persistently followed by both nations upon the appointment of the 
Boundary Commission of 1889. 

In 1893, a dispute arose in a case known as the "Banco de 
Camargo," which involved a claim that the land had formed by 
gradual erosion and deposit of alluvium since 1865. After a cor- 
respondence between Senor Mariscal and the United States Minis- 
ter, in which they refer to the Convention of 1884, it was decided 
to bring the case, along with similar ones, before the attention of 
the Boundary Commission, when organized. Upon the organiza- 
tion of the commission the case was duly submitted, and the com- 
mission found that the erosion in question dated back to the year 
1865, and applied the provisions of the Convention of 1884 to its 
solution. 

In 1893 a dispute arose as to the arrest of American citizens on 
land which was claimed by citizens of both nations, and which had 
formed on the edge of the river prior to 1884. The two govern- 
ments thereupon agreed to refer the matter to the International 
Boundary Commission, which was organized for work on the 4th 
January, 1894. 

In the case of the "Banco de Vela," a claim based upon accretions 
which began in 1853, tne matter was also referred to the boundary 
commission. 

In the case of the "Banco de Granjeno," under circumstances 
which were similar, the accretions having begun in 1853, the con- 
troversy was referred to and dealt with by the same commission. 

In the case of the "Banco de Santa Margarita," an analogous 
condition existed, and a similar disposition of the case was made. 

The bancos above referred to were formed by accretions to land 
on one side of the river, with erosions on the other side, until the 
channel ran on a curve, and a time came when the force of the 
current made a new channel, leaving a banco between the new and 
old channel. 

In dealing with the above cases the commissioners, in a joint 
report dated 15th January, 1895, concluded that the application 
of the Treaty of 1884 to these bancos would be inconvenient and 



award: opinion of presiding commissioner. 27 

would create difficulties which had not been foreseen. They 
accordingly recommended the elimination of the bancos from the 
Convention of 1884 and the signing of a special agreement with 
reference thereto. 

As a result of this report, a convention was formally signed in 
1905, which clearly acknowledges the application of Article II 
of the Convention of 1884 to fifty-eight bancos which had been 
surveyed and described in the report of the consulting engineers. 

The convention further recites "That the application to these 
bancos of the principle established in Article II of the Convention 
of 1884 renders difficult the solution of the controversies men- 
tioned, and, instead of simplifying, complicates the said boundary 
line between the two countries," and provides that these bancos, 
together with those which may in future be formed, shall be 
eliminated from the operation of the Convention of 1884, and 
shall be dealt with in a different manner. 

This recognition of the retrospective application of the Conven- 
tion of 1884 is not that of subordinates, but of the governments 
themselves, which expressly adopted the views of the commissioners 
as to the application of the Treaty of 1884 and as to the desirability 
of taking such cases, both past and future, out of the convention 
and substituting new provisions. 

In 1895 the Chamizal claim was submitted to the commission 
in a letter of Mr. Mariscal, above referred to. While the claim is 
a private one, there is no doubt that it was presented with the 
authority and concurrence of the Mexican Government and 
received its support throughout its various stages as involving a 
controversy as to the international title to the Chamizal tract. 
The claim of Pedro Y. Garcia, on its face, showed that it was 
based on changes which had occurred in the river prior to 1884, 
and, notwithstanding this well-known fact, the matter was referred 
to the International Boundary Commission to be dealt with, and 
would have been disposed of but for a disagreement between the 
two commissioners, one of whom considered that the changes had 
resulted from slow and gradual erosion, as required by the Con- 
vention of 1884, while the other commissioner considered that the 
erosion had been violent and intermittent and not of such a char- 
acter as, under the terms of the Convention of 1884, could change 
the international boundary. 

While the Chamizal case was pending before the International 
Boundary Commission, they became seized of the controversy 



28 CHAMIZAE ARBITRATION: MINUTES OF JUNE IO, 1911. 

concerning the Island of San Elizario, which was presented to the 
commission by the Mexican Commissioner on the 4th November, 
1 895 . The decision in this case, rendered on the 5th October, 1 896, 
was based upon changes which occurred in the years 1857 and 1858. 
Like all other decisions of the boundary commission, it was com- 
municated to the Mexican Government, which, under the terms of 
the Convention of 1889, could disapprove of the action of the com- 
missioners within one month from the day of its pronouncement. 
Far from being disallowed, the decision was expressly approved by 
the Mexican Government, as appears from the letter addressed 
by Mr. Mariscal to the Mexican Minister at Washington on 5th 
October, 1896. 

Thus in all cases dealt with by the two governments after the 
Convention of 1884 referring to river changes occurring prior to 
that date, the provisions of that convention were invariably and 
consistently applied. 

On the whole, it appears to be impossible to come to any other 
conclusion than that the two nations have, by their subsequent 
treaties and their consistent course of conduct in connection with 
all cases arising thereunder, put such an authoritative interpreta- 
tion upon the language of the Treaties of 1848 and 1853 as to 
preclude them from now contending that the fluvial portion of the 
boundary created by those treaties is a fixed line boundary. 

The Presiding Commissioner and the American Commissioner 
therefore hold that the Treaties of 1848 and 1853, as interpreted 
by subsequent conventions between the parties and by their course 
of conduct, created an arcifinious boundary, and that the Conven- 
tion of 1884 was intended to be and was made retroactive by the 
high contracting parties. 

(Mr. Commissioner Puga dissents from this holding for the rea- 
sons set forth in his subjoined opinion.) 

PRESCRIPTION. 

In the countercase of the United States, the contention is ad- 
vanced that the United States has acquired a good title by pre- 
scription to the tract in dispute, in addition to its title under 
treaty provisions. 

In the argument it is contended that the Republic of Mexico is 
estopped from asserting the national title over the territory known 
as "El Chamizal" by reason of the undisturbed, uninterrupted, 



award: opinion of presiding commissioner. 29 

and unchallenged possession of said territory by the United 
States of America since the Treaty of Guadalupe Hidalgo. 

Without thinking it necessary to discuss the very controversial 
question as to whether the right of prescription invoked by the 
United States is an accepted principle of the law of nations, in the 
absence of any convention establishing a term of prescription, the 
commissioners are unanimous in coming to the conclusion that the 
possession of the United States in the present case was not of such 
a character as to found a prescriptive title. Upon the evidence 
adduced it is impossible to hold that the possession of El Chamizal 
by the United States was undisturbed, uninterrupted and unchal- 
lenged from the date of the Treaty of Guadalupe Hidalgo in 1848 
until the year 1895, when, in consequence of the creation of a com- 
petent tribunal to decide the question, the Chamizal case was first 
presented. On the contrary it may be said that the physical pos- 
session taken by citizens of the United States and the political 
control exercised by the local and federal governments, have been 
constantly challenged and questioned by the Republic of Mexico, 
through its accredited diplomatic agents. 

As early as 1856, the river changes threatening the valley of El 
Paso had caused anxious inquiries, which resulted in a reference of 
the matter to the Hon. Caleb Cushing for his opinion. 

In January, 1867, Don Matias Romero forwarded to Mr. Seward, 
Secretary of State, a communication from the perfecture of Brazos 
relating to the controversy between the people of El Paso del 
Norte (now Juarez) and the people of Franklin (now El Paso, 
Texas) over the Chamizal tract, then in process of formation. From 
that time until the negotiation of the Convention of 1884, a con- 
siderable amount of diplomatic correspondence is devoted to this 
very question, and the Convention of 1884 was an endeavor to fix 
the rights of the two nations with respect to the changes brought 
about by the action of the waters of the Rio Grande. 

The very existence of that convention precludes the United 
States from acquiring by prescription against the terms of their 
title and, as has been pointed out above, the two republics have 
ever since the signing of that convention treated it as a source of all 
their rights in respect of accretion to the territory on one side or 
the other of the river. 

Another characteristic of possession serving as a foundation for 
prescription is that it should be peaceable. In one of the affidavits 
filed by the United States to prove their possession and control 



30 chamizal arbitration: minutes of june 10, 191 1. 

over the Chamizal district (that of Mr. Cold well) we find the follow- 
ing significant statement. 

In 1874 or 1875 I was present at an interview between my father 
and Mr. Jesus Necobar y Armendariz, then Mexican Collector of 
Customs at Paso del Norte, now Ciudad Juarez, which meeting 
took place at my father's office on this side of the river. 

Mr. Necobar asked my father for permission to station a Mexican 
Custom House officer on the road leading from Kl Paso to Juarez, 
about 200 or 300 yards north of the river. My father replied in 
substance that he had no authority to grant any such permission, 
and even if he had, and granted permission, it would not be safe 
for a Mexican Customs officer to attempt to exercise any authority 
on this side of the river. 

It is quite clear from the circumstances related in this affidavit 
that however much the Mexicans may have desired to take physical 
possession of the district, the result of any attempt to do so would 
have provoked scenes of violence and the Republic of Mexico 
can not be blamed for resorting to the milder forms of protest 
contained in its diplomatic correspondence. 

In private law, the interruption of prescription is effected by 
a suit, but in dealings between nations this is of course impossible, 
unless and until an international tribunal is established for such 
purpose. In the present case, the Mexican claim was asserted 
before the International Boundary Commission within a reasonable 
time after it commenced to exercise its functions, and prior to 
that date the Mexican Government had done all that could be 
reasonably required of it by way of protest against the alleged 
encroachment. 

Under these circumstances the Commissioners have no difficulty 
in coming to the conclusion that the plea of prescription should 
be dismissed. 

APPLICATION OP THE CONVENTION OF 1 884. 

Upon the application of the Convention of 1884 to the facts 
of this case the commissioners are unable to agree. 

The Presiding Commissioner and the Mexican Commissioner 
are of the opinion that the evidence establishes that from 1852 to 
1864 the changes in the river, which during that interval formed a 
portion of the Chamizal tract, were caused by slow and gradual 
erosion and deposit of alluvium within the meaning of Article 
I of the Convention of 1884. 

They are further of opinion that all the changes which have 
taken place in the Chamizal district from 1852 up to the present 



award: opinion of presiding commissioner. 31 

date have not resulted from any change of bed of the river. It 
is sufficiently shown that the Mexican bank opposite the Chamizal 
tract was at all times high and that it was never overflowed, and 
there is no evidence tending to show that the Rio Grande in that 
vicinity ever abandoned its existing bed and opened a new one. 
The changes, such as they were, resulted from the degradation of 
the Mexican bank, and the alluvial deposits formed on the Ameri- 
can bank, and as has been said, up to 1864 this erosion and deposit 
appears to come within Article I of the Convention of 1884. 

With respect to the nature of the changes which occurred in 
1864, and during the four succeeding years, the Presiding Com- 
missioner and the Mexican Commissioner are of opinion that the 
phenomena described by the witnesses as having occurred during 
that period can not properly be described as alterations in the river 
effected through the slow and gradual erosion and deposit of 
alluvium. 

The following extracts from the evidence are quoted by the 
Presiding Commissioner and the Mexican Commissioner in support 
of their views: 

Jesus Serna — Q. When the change took place was it slow or 
violent? — A. The change was violent, and destroyed the trees, 
crops and houses. 

Ynocente Ochoa — Q. When the change took place was it 
slow or violent? — A. As I said before, it was sometimes slow and 
sometimes violent, and with such force that the noise of the banks 
falling seemed like the boom of cannon, and it was frightful. 

E. Provincio — Q. Explain how you know what you have 
stated. — A. Because the violent changes of the river in 1 864 caused 
considerable alarm to the city, and the people went to the banks 
of the river and pulled down trees and tried to check the advance 
of the waters. I was there sometimes to help and sometimes 
simply to observe. I helped to take out furniture from houses in 
danger and to remove beams of houses, etc. 

Q. When the change took place was it slow or violent ?- — A. I 
cannot appreciate what is meant by slow or violent, but sometimes 
as much as fifty yards would be washed away at certain points in 
a day. 

Q. Please describe the destruction of the bank on the Mexican 
side that you spoke of in your former testimony. Describe the 
size of the pieces of earth that you saw fall into the river. — A. 
When the river made the alarming change it carried away pieces 
of earth one yard, two yards, etc., constantly, in intervals of a few 
minutes. At the time of these changes the people would be 
standing on the banks watching a piece going down, and somebody 



32 CHAMIZAL ARBITRATION: MINUTES OF JUNE IO, 1911. 

would call "look out, there is more going to fall" and they would 
have to jump back to keep from falling into the river. 

Q. Do you think that those works were constructed to protect 
against the slow and gradual work of the river or against the 
floods ? — A. They were made to protect the town from being carried 
away in the event of another flood like that of '64, because the curve 
that the river had made was dangerous to the town. 

Jose M. FlorES — Q. Did the current come with such violence 
between 1864 and 1868 that houses and fields were destroyed? — 
A. Yes, sir. 

Q. Please describe the manner of the tearing away of the Mexi- 
can bank by the current when these changes were taking place. — 
A. The current carried the sand from the bank and cut in under, 
and then these pieces would fall into the water. If the bank was 
very high it took larger pieces; say two yards, never more than 
three yards wide, and where the banks were low it took smaller 
pieces. 

Doctor Mariano Samanieco describes the violence of the 
change as follows: "The changes were to such a degree that at 
times during the night the river would wear away from fifty to 
one hundred yards. There were instances in which people living 
in houses distant fifty yards from the banks on one evening had 
to fly in the morning from the place on account of the encroach- 
ments of the river, and on many occasions they had no time to 
cut down their wheat or other crops. It carried away forests 
without giving time to the people to cut the trees down. 

Q. Of the changes of the river that you have mentioned, were 
they all perceptible to the eye? — A. Yes, sir. 

The Presiding Commissioner and the Mexican Commissioner 
consider that the changes referred to in this testimony can not 
by any stretch of the imagination, or elasticity of language, be 
characterized as slow and gradual erosion. 

The case of Nebraska v. Iowa (143 U. S. 359), decided by the 
Supreme Court of the United States in 1892, is clearly distinguish- 
able from the present case. In Nebraska v. Iowa the court, apply- 
ing the ordinary rules of international law to a fluvial boundary 
between two States, hold that while there might be an instantane- . 
ous and obvious dropping into the Missouri River of quite a por- 
tion of its banks, and while the disappearance, by reason of this 
process, of a mass of bank might be sudden and obvious, the 
accretion to the other side was always gradual and by the imper- 
ceptible deposit of floating particles of earth. The conclusion 
was, therefore, that notwithstanding the rapidity of the changes 



award: opinion of presiding commissioner. 33 

in the course of the channel, and the washing from the one side onto 
the other, the law of accretion controlled on the Missouri River, as 
elsewhere. 

In the present case, however, while the accretion may have been 
slow and gradual, the parties have expressly contracted that not 
only the accretion, but the erosion, must be slow and gradual. 
The Convention of 1884 expressly adopts a rule of construction 
which is to be applied to the fluvial boundary created by the 
Treaties of 1848 and 1853, and this rule is manifestly different 
from that which was applied in the case of Nebraska v. Iowa, in 
which the court was not dealing with a special contract. If it had 
been called upon, in the case just cited, to decide whether the 
degradation of the bank of the Missouri River had occurred through 
a slow and gradual process the answer would undoubtedly have 
been in the negative. 

In the case of St. Louis v. Ruiz (138 U. S., 226) the Supreme 
Court of the United States, dealing with facts very similar to those 
established by the evidence in the present case, found that the 
washing away of the bank of the Mississippi River did not take 
place slowly and imperceptibly, but, on the contrary, the caving 
in and washing away of the same was rapid and perceptible in its 
progress; that such washing away of said river bank occurred 
principally at the rises or floods of high water in the Mississippi 
River, which usually occurred in the spring of the year; that 
such rises or floods varied in their duration, lasting from four to 
eight weeks before the waters of the river would subside to their 
ordinary stage or level; that during each flood there was usually 
carried away a strip of land from off said river bank from 240 to 
300 feet in width, which loss of land could be seen and perceived 
in its progress ; that as much as a city block would be cut off and 
washed away in a day or two, and that blocks or masses of earth 
from ten to fifteen feet in width frequently caved in and were car- 
ried away at one time. 

If the degradation of the bank of the Mississippi River, above 
described, was found by the Supreme Court not to be slow and 
imperceptible progress, it is difficult to understand how the destruc- 
tion of land, houses and forests, described by the witnesses in the 
present case, can be regarded as examples of slow and gradual 
erosion. 

5591— 11 3 



34 CHAMIZAL ARBITRATION: MINUTES OF JUNE IO, 1911. 

Nor can the Presiding Commissioner and the Mexican Com- 
missioner give effect to the contention that Mexico must be held to 
have put a construction on the words "slow and gradual" in the 
preamble of the Banco Treaty of 1905, which adopted the report 
of the commissioners stating that the changes producing the 
bancos were due to slow and gradual erosion coupled with avulsion, 
although it is alleged by the United States that the erosion in that 
case was even more violent than that which occurred at the 
Chamizal. The report rendered by the commissioners to their 
respective governments in no way discloses any facts tending to 
show the nature and extent of the erosive changes, and properly 
so, because that was not material to the question to be decided. 
It is true that, by making a minute examination of the plans 
accompanying the report, the actual extent of the erosive changes 
might have been ascertained, but there certainly was nothing in 
the question submitted to the governments for solution to neces- 
sitate, or even suggest, such an inquiry. 

It has also been contended on behalf of the United States that 
before the signing of the Treaty of 1 905 , the Mexican Government 
had received the opinion of the American commissioner in the 
Chamizal case, which asserted that if the erosion in Chamizal was 
not slow and gradual, then a fortiori the erosion which had formed 
the bancos in the lower part of the river could not be slow and 
gradual. The effect of this assertion on the part of the American 
Commissioner, however, was counteracted by the reply of the 
Mexican Commissioner, who argued that there was no similarity 
between the two cases and no inconsistency between his report 
on the bancos and his attitude in the Chamizal case. Under these 
circumstances it is reasonable to conclude that the Mexican Gov- 
ernment adopted the view of their commissioner, and in any 
event, it cannot be successfully contended that in assenting to 
the language of the preamble of the Banco Treaty it was precluded 
from contending that the Chamizal case was of a different nature. 

It has been suggested, and the American Commissioner is of 
opinion, that the bed of the Rio Grande as it existed in 1864, 
before the flood, can not be located, and moreover that the present 
Commissioners are not authorized by the Convention of the 5th 
December, 19 10, to divide the Chamizal tract and attribute a por- 
tion thereof to the United States and another portion to Mexico. 
The Presiding Commissioner and the Mexican Commissioner can 
not assent to this view and conceive that in dividing the tract in 



award: opinion of presiding commissioner. 35 

question between the parties, according to the evidence as they 
appreciate it, they are following the precedent laid down by the 
Supreme Court of the United States in Nebraska v. Iowa, above 
cited. In that case the court found that up to the year 1877 the 
changes in the Missouri River were due to accretion, and that, in 
that year, the river made for itself a new channel. Upon these 
findings it was held that the boundary between Iowa and Nebraska 
was a varying line in so far as affected by accretion, but that from 
and after 1877 the boundary was not changed, and remained as 
it was before the cutting of a new channel. Applying this prin- 
ciple, mutatis mutandis, to the present case, the Presiding Com- 
missioner and Mexican Commissioner are of opinion that the accre- 
tions which occurred in the Chamizal tract up to the time of the 
great flood in 1864 should be awarded to the United States of 
America, and that inasmuch as the changes which occurred in 
that year did not constitute slow and gradual erosion within the 
meaning of the Convention of 1884, the balance of the tract 
should be awarded to Mexico. 

They also conceive that it is not within their province to relo- 
cate that line, inasmuch as the parties have offered no evidence 
to enable the Commissioners to do so. In the case of Nebraska v. 
Iowa the court contented itself with indicating, as above stated, 
the boundary between the two States and invited the parties 
to agree to a designation of the boundary upon the principles 
enunciated in the decision. 

The American Commissioner dissents from the above holding, 
for the reasons given in his subjoined memorandum, and is of 
opinion that all the changes which have taken place at the Cha- 
mizal since 1852 were due to slow and gradual erosion and deposit 
of alluvium, within the meaning of the Convention of 1884. 

He is further of opinion that the Commissioners have no juris- 
diction to separate the Chamizal tract, and award a portion to 
the United States and a portion to Mexico, and, in view of his 
conviction that the position of the river bed in 1864 can not be 
ascertained, he considers that the award of the majority of the 
Commissioners can not be made effective. 

Wherefore the Presiding Commissioner and the Mexican Com- 
missioner, constituting a majority of the said Commission, hereby 
award and declare that the international title to the portion of 
the Chamizal tract lying between the middle of the bed of the 
Rio Grande, as surveyed by Emory and Salazar in 1852, and the 



36 chamizal arbitration: minutes of june 10, 191 1. 

middle of the bed of the said river as it existed before the flood of 
1864, is in the United States of America, and the international 
title to the balance of the said Chamizal tract is in the United 
States of Mexico 

The American Commissioner dissents from the above award. 

El Paso, 15th June, 191 1. 

E. Lafleur, 
(Signed) Anson Mills, 

F. B. Puga. 

DISSENTING OPINION OF THE AMERICAN COMMISSIONER. 

The American Commissioner concurs in the findings of the Pre- 
siding Commissioner to the effect that the Treaties of 1848 and 
1853 did not establish a fixed and invariable line; that the Treaty 
of 1884 was retroactive, and in the finding of the Presiding Com- 
missioner and the Mexican Commissioner to the effect that the 
United States has not established a title to the Chamizal tract by- 
prescription. He is compelled to dissent in toto from so much of 
the opinion and award as assumes to segregate the Chamizal 
tract and to divide the parts so segregated between the two 
nations, and from that part of the opinion and award which holds 
that a portion of the Chamizal tract was not formed through ' ' slow 
and gradual erosion and deposit of alluvium" within the terms of 
the Treaty of 1884. 

The reasons for the dissent are threefold: First, because in his 
opinion, the Commission is wholly without jurisdiction to segre- 
gate the tract or to make other findings concerning the change at 
El Chamizal than "to decide whether it has occurred through 
avulsion or erosion, for the effects of articles 1 and 2 of the Con- 
vention of November 12, 1884," (and article 4, Convention of 
1889). Secondly, because, in his opinion, the Convention of 1884 
is not susceptible to any other construction than that the change 
of the river at El Chamizal was embraced within the first alterna- 
tive of the Treaty of 1884. And, thirdly, because, in his opinion, 
the finding and award is vague, indeterminate and uncertain in its 
terms and impossible of execution. 

DIVISION OF TRACT A DEPARTURE FROM CONVENTION OF 1910. 

In the judgment of the American Commissioner, articles i and 
3 of the Convention of June 24, 1910, providing for the present 
arbitration, submit to this Commission the question as to the 



DISSENTING OPINION OF AMERICAN COMMISSIONER. 37 

international title of the Chamizal tract in its entirety and this 
question only. Article I of the convention bounds the Chamizal 
tract with technical accuracy, while article 3 provides that "the 
Commission shall decide solely and exclusively as to whether the 
international title to the Chamizal tract is in the United States of 
America or Mexico." 

It is believed that by those provisions, when read together, the 
two governments have asked this Commission a specific and defi- 
nite question and that the Commission is " solely and exclusively " 
empowered and required to give a specific and definite answer — 
either that the international title to the Chamizal tract as defined 
in the convention is in the United States or that it is in Mexico. 
The prima facie meaning of the language of the convention is rein- 
forced when the convention is read in the light of the history of 
the controversy which called it into being, and in the light of the 
conduct of the two parties before this Commission. From Senor 
Romero's note of January 9, 1867 (U. S. Case App., p. 553) which 
is, so far as appears, the first reference to what is now known as 
the Chamizal tract in the correspondence between the two govern- 
ments, down to the concluding arguments before this Commission 
on June 2nd last, there is not the slightest suggestion on the part 
of either of the two governments that there could be any question 
of a division of the tract. The Presiding Commissioner was the 
first to raise the question of a division of the tract in connection 
with another point which was under discussion by counsel for the 
United States. (Record, pp. 430, 432.) Subsequently, counsel 
for Mexico defined the attitude of Mexico as to the issue before 
the Tribunal in the following language: 

In answer to that (i. e. , the suggestion that no monuments were 
fixed) I have but to remind this Court that the Treaty of 19 10 says 
that the monuments are fixed, says that the line was run, tells this 
Court where to find it and says that either that is the line between 
this country and Mexico or the present channel of the Rio Grande, 
as it runs is the line. (Record, p. 500.) 

Thereafter, counsel for the United States recurred to the ques- 
tion and specifically took the position that the only question before 
the Tribunal was as to the international title to the tract in its 
entirety, called attention to the evident agreement of the parties 
upon this point, and pointed out that a decree segregating the 
tract "would be a departure from the terms of the convention." 
(Record, pp. 535, 536.) 



38 chamizaIv arbitration: minutes of june 10, 191 1. 

Even in ordinary tribunals of general jurisdiction it is regarded 
as a dangerous practice for the court to award a decree not solicited 
or endorsed by counsel for either party. Is not this danger accen- 
tuated when an international tribunal, which has no powers except 
those conferred upon it by the terms of the submission under which 
it sits, assumes to raise and answer a question never suggested by 
the parties in the course of negotiations extending over fifty years, 
and not indorsed by either party in argument when suggested from 
the bench ? Particularly is this true when it can be asserted with- 
out fear of contradiction that if there had been the slightest idea 
in the minds of the negotiators of the Treaty of June 24, 1910, 
that it was susceptible of the construction which has been placed 
upon it by the majority of the Commission, the possibility of such 
an unfortunate result would have been eliminated in even more 
precise and affirmative language. 

The Commissioner for the United States is unable to understand 
the force of the reference in the opinion of the Presiding Commis- 
sioner, to the case of Nebraska v. Iowa as a "precedent " for " divid- 
ing the tract in question between the parties." There is an appar- 
ent difference between the powers of the Supreme Court of the 
United States, acting under the provisions of the Constitution of 
the United States, conferring general and original jurisdiction in 
controversies between States, on a bill and cross bill in equity to 
establish a disputed boundary line between two States, and this 
Commission with powers and jurisdiction strictly limited by the 
conventions which have called it into being. Indeed, the opinion 
of the majority of the Commission seems to recognize this distinc- 
tion in another connection in stating the proposition, in which the 
American Commissioner concurs, that the present Commission, 
unlike the Supreme Court in Nebraska v. Iowa, is bound by the 
terms of the Convention of 1884. It is also bound by the terms of 
the Convention of 1910. 

It is axiomatic that "a clear departure from the terms of the 
reference" (Twiss, The Law of Nations, 2d ed., 1875, p. 8) invali- 
dates an international award, and the American Commissioner is 
constrained to believe that such a departure has been committed 
by the majority of the Commission in this case in dividing the 
Chamizal tract and deciding a question not submitted by the 
parties. 



DISSENTING OPINION OF AMERICAN COMMISSIONER. 39 

TWO KINDS OF EROSION A DEPARTURE FROM CONVENTION OF I 884. 

But this is not all; as the Hague Court recently pointed out in 
the case of the Orinoco Steamship Company, "excessive exercise 
of power may consist not only in deciding a question not submitted 
to the arbitrators, but also in misinterpreting the express provisions 
of the agreement in respect of the way in which they are to reach 
their decisions, notably with regard to the legislation or the prin- 
ciples of law to be applied." (United States v. Venezuela, before 
the Hague Court. American Journal of International Law, Vol. 
5, No. 1, pp. 232 and 233.) 

The preamble of the Convention of June 24, 19 10, prescribed 
the law which governs this Commission, namely, "the various 
treaties and conventions now existing between the two countries 
and * * * the principles of international law." The Com- 
mission has held the Convention of 1884 retroactive and therefore 
in general applicable to this case. While the Convention of 1884 
purports to cover all changes that may occur in the course of the 
Rio Grande and the Rio Colorado where they constitute a boundary 
between the United States and Mexico, it nevertheless makes pro- 
vision for but two methods of effecting such changes, or rather 
distinguishes the changes which may occur into two distinct classes, 
viz.: one covers alterations in the banks or the course of those 
rivers, effected by natural causes through the slow and gradual 
erosion and deposit of alluvium, and the other covers "any other 
change wrought by the force of the current, whether by the cutting 
of a new bed, or when there is more than one channel by the deepen- 
ing of another channel than that which marked the boundary at 
the time of the survey made in 1852." 

The American Commissioner deems it unnecessary to examine 
further into the question of the cutting or deepening of a new bed 
since the Presiding Commissioner and the Mexican Commissioner 
have found that no change which has taken place opposite the 
Chamizal tract since 1852 has resulted "from any change of bed 
of the river" (Opinion, p. 29 [supra, pp. 30-31]) and in that 
finding the American Commissioner concurs. 

The Commissioner for the United States does deem it proper, 
however, to point out that the language of Article II of the Con- 
vention of 1884 makes no provisions respecting the boundary in 
the event of any other change of the river than that embraced in 
"the cutting of a new bed "or the "deepening of another channel 



4-0 CHAMIZAL ARBITRATION: MINUTES OF JUNE IO, 1911. 

than that which marked the boundary at the time of the survey " 
of 1852. 

It is true that Article II of the convention begins with the words 
" any other change wrought by the force of the current," but those 
words are immediately followed by the provision "whether by the 
cutting of a new bed, or when there is more than one channel by 
the deepening of another channel than that which formed the 
boundary at the time of the survey made under the aforesaid 
treaty." 

It is a rule of interpretation which the Supreme Court of the 
United States says to be " of universal application " (United States 
v. Arredondo, 6 Pet., 691) that "where specific and general terms 
of the same nature are embraced in the statute, whether the latter 
precede or follow the former, the general terms take their meaning 
from the specific and are presumed to embrace only things or per- 
sons designated by them." (Fontonct v. The State, 112 La., 628, 
36 So. Rep., 630.) 

Authorities to support this proposition might be adduced with- 
out number, but reference will be made to a few: U . S. v. Bevans, 
3 Wheat., at p. 390; Moore v. American Transportation Co., 24 
Howard, 1-41 ; U . S. v. Irwin, Federal Cases No. 14,445; Supreme 
Court of Ky. in City of Covington v.. McNicholas Heirs, 57 Ky., 262 ; 
Rogers v. Boiller, 3 Mart. O. S. 665; City of St. Louis v. Laughlin, 
49 Mo. 559; Brandon v. Davis, 2 Leg. Rec. 142; Felt v. Felt, 19 
Wis. 183, also State v. Gootz, 22 Wis. 363; Gaither v. Green, 40 La. 
Ann. 362; 4 So. Rep. 210; Phillips v. Christian Co., 87 111. App. 
481; In re Rouse, Hazzard & Co., 91 Fed. Rep. 96; Barbour v. 
City of Louisville, 83 Ky. 95; Townsend Gas & Electric Co. v. Hill, 
64 Pac. Rep. 778, 24 Wash. 369; State v. Hobe, 82 N. W. Rep. 336, 
106 Wis. 411. 

In Regina v. France, 7 Quebec, Q. B., 83, it is stated that: 

It is immaterial, it has been held, whether the generic term 
precedes or follows the specific terms which are used. In either 
case the general word must take its meaning and be presumed to 
embrace only things or persons of the kind designated in the 
specific words. (Quoted from Am. & Eng. Enc. of Law, Vol. 26, 
p. 610, under caption "Statute.") 

DID THE UNITED STATES ABANDON VESTED RIGHTS? 

Not only does the language of Article II confine its meaning to 
specific changes of channel described therein, but the fifth article 
of the same convention makes provision for the protection of 



DISSENTING OPINION OF AMERICAN COMMISSIONER. 4 1 

property rights "in respect of lands which may have become 
separated through the creation of new channels as defined in 
Article II," but it makes no provision whatever for the protection 
of property rights in contemplation of any other change in the 
course of the river, much less does it make such provision as to 
lands degradated by rapid and violent erosion. It was suggested 
by the Honorable Presiding Commissioner during the argument 
of this case that no provision was necessary to protect private 
rights in case the land was carried away by any character of erosion 
because the property itself was destroyed and no private rights 
could remain. (Record, pp. 704, 705.) In this proposition the 
United States Commissioner concurs, but he is wholly at loss to 
discover how a public or international title could remain in prop- 
erty that was so effectually destroyed as to annihilate private 
rights. Even supposing it was unnecessary to protect private 
rights on the banks thus degraded, would no idea have suggested 
itself with regard to the rights of those who had taken up their 
residence on the other side, for instance, at El Chamizal, or at 
Santa Cruz Point ? As suggested by the Presiding Commissioner, 
"all the great changes in the course of the Rio Grande had occurred, 
and practically the whole Chamizal tract had been formed * * * 
but the fact remains that all the great and visible changes which 
are reported to have taken place during the floods extending from 
1864 to 1868 had done their work, and, in the case of the Chamizal 
tract, the changes had been so considerable in the upper portion 
of the river, which is proved to have been less liable to modifica- 
tions owing to the nature of its soil than the lower part of the river, 
that it formed the subject of much diplomatic correspondence." 
(Opinion, p. 20 [supra, p. 24].) And yet the record in the case 
discloses that every foot of the accretion at El Chamizal had been 
occupied prior to 1884 under color of American title. (See official 
map of El Paso, Texas, 1881, U. S. Countercase, Portfolio, Map 
No. 10; also Act incorporating the city of El Paso, U. S. Coun- 
tercase, p. 139, and Patents of the State of Texas and Minutes 
of the City Council of the City of El Paso, U. S. Countercase, pp. 
139-168.) 

The Supreme Court of the United States, in the case of United 
States v. Arredondo, supra, says: 

That it has been very truly urged by the counsel of the defend- 
ant in error that it is the usage of all the civilized nations of the 
world, when territory is ceded, to stipulate for the property of its 
inhabitants. An article to secure this object, so deservedly held 



42 CHAMIZAL ARBITRATION: MINUTES OF JUNE IO, 1911. 

sacred in the view of policy as well as of justice and humanity, is 
always required and never refused. 

And further in that case the court, in alluding to the treaty 
between the United States and Spain, concluded on the 27th of 
October, 1795, said: 

Had Spain considered herself as ceding territory, she could not 
have neglected a stipulation which every sentiment of justice and 
national honor would have demanded, and which the United 
States could not have refused. 

Under the fluvial boundary, which this Commission has held the 
Treaties of 1848 and 1853 created, a title had vested in the United 
States and the citizens thereof in all accretions to the Chamizal, 
tract under the recognized principles of international law. If the 
language of the Convention of 1884 recognized in Mexico or its 
citizens any right in any portion of such accretions, however formed, 
the United States divested itself and its citizens of rights which 
international law had given them and yet the United States did, 
if the opinion of the majority of this Commission is correct, neglect 
" a stipulation which every sentiment of justice and national honor 
would have demanded, and which the United States [Mexico] 
could not have refused." 

Vattel says (Law of Nations, Book I, chap. 2, sec. 17) : 

The body of a nation can not then abandon a province, a town, 
or even a single individual who is a part of it, unless compelled to 
it by necessity, or indispensably obligated to it by the strongest 
reasons founded on the public safety. 

The foregoing views are in entire accord with the opinion of the 
Mexican Commissioner as expressed in the second paragraph of 
the dissenting opinion. 

WHAT LAW GOVERNS? 

The Commissioner for the United States has been unable to dis- 
cover, although he has made a careful study of the opinion of the 
majority of the Commission, under what provision of the Conven- 
tion of 1884 it is conceived that Mexico can be entitled to any por- 
tion of the Chamizal tract, the formation of which may be ascribed 
to any character of erosion, whether slow and gradual or rapid and 
violent. Had the Commissioner for the United States been able 
to expel from his mind and to disregard the language of the Treaties 
of 1889 and 1905, had he been able to forget and disregard the con- 
struction which has been placed upon Article I of the Convention 



DISSENTING OPINION OF AMERICAN COMMISSIONER. 43 

of 1884 by the International Boundary Commission since its organ- 
ization in 1893, and had he been wholly uninfluenced by the fact 
that counsel for Mexico as well as counsel for the United States 
were agreed that the Convention of 1884 embraced but two classes 
of changes as hereinbefore set forth (Record, p. 608) , he might have 
been able to concur with the majority of the Commission that the 
degradation of the Mexican bank of the river at some uncertain 
points and at some uncertain times was not within the meaning of 
Article I of the Treaty of 1884, but the Commissioner for the 
United States does not believe that by any stretch of the imagina- 
tion or any elasticity of the law, any character of erosion and de- 
posit can be brought within the meaning of Article II of that con- 
vention. Therefore, the result must have been the same; if the 
change which occurred at El Chamizal was not within the meaning 
of either Article I or II of the Convention of 1884, then said con- 
vention becomes inapplicable and we must look to the principles 
of international law for the rule which is to govern our action. But 
it is admitted both in the language of the Commission as embodied 
in the record of our hearing (Record, pp. 203, 300) as well as in the 
printed argument of counsel for Mexico (Mexican Argument, p. 31) 
that under the principles of international law the change in the 
course of the river due to erosion and deposit would carry the 
boundary line with it, no matter how rapid might be the degrada- 
tion of one bank by erosion, provided only that the growth of the 
other bank was accomplished by gradual deposit of alluvium, and 
such the American Commissioner conceives to be the undisputed 
evidence and the admitted facts of this case. 

The precise language in which the learned agent of Mexico sets 
forth his position upon this point is so significant as to deserve 
quotation : 

In fact, the Convention only occupied itself with two classes of 
alterations or changes of the bank and channel of the river; one, 
that originated by the slow and gradual erosion of one bank and 
the deposit of alluvium, and the other by the abandonment of an 
old bed and the opening of a new one. (Record, p. 203.) 

In view of the foregoing, the Commissioner for the United States 
can not but regard it as unfortunate that the Commission should 
have indicated no desire to hear further argument on this point 
(as appears in the record of the hearing at pp. 608-614), where the 
Commission indicated that it scarcely seemed desirable to pursue 
this point since counsel for both sides seemed agreed that the 



44 CHAMIZAIv ARBITRATION: MINUTES OF JUNE IO, 1911. 

Convention of 1884 embraced but two classes of changes, because 
he ventures to believe that counsel for the United States would 
have convinced the Commission that it must assign the change 
at El Chamizal to the first alternative in Article I of the Con- 
vention of 1884, or else disregard the Convention of 1884 entirely 
and decide the case upon the principles of international law. 

In the Opinion of the Presiding Commissioner (Opinion, p. 33 
[supra, p. 33]) reference has been made to the case of the City of St. 
Louis v. Rutz (138 U. S., 226), and it is stated that the facts in that 
case are very similar to those established by the evidence in the 
present case. But with all respect, the American Commissioner 
submits that while the rapid degradation of the east bank of the 
Mississippi River, as described in that case, is very similar to the 
erosion that is shown to have occurred at certain or rather uncertain 
points opposite El Chamizal, the vital facts in that case and the 
present case are very different. In that case the evidence disclosed 
a rapid degradation of the east bank of the river and the complete 
submergence for several years of that portion of plaintiff's surveys. 
Subsequently an island formed on the east side of the thread of 
the river and that island became joined by accretion to plaintiff's 
surveys. The court held that under the laws of Illinois the plaintiff 
owned in fee simple that portion of the river bed lying east of the 
thread of the stream and that when new land formed east of the 
thread of the stream it belonged to the former owner. The court 
makes very clear that the ground of its decision is that the holder 
of the Missouri title on the west bank could not own the land which 
thus appeared first by an island formation and subsequently by 
accretion thereto east of the thread of the stream. 

An analogous case would have been presented here if after the 
river had invaded Mexican territory by rapid erosion, making for 
itself a bed five hundred yards wide, as one witness testified it did 
(U. S. Case, App., p. 118), an island had subsequently arisen to 
the south of the thread of the stream. That island would have 
belonged to Mexico whether it subsequently became joined to the 
south bank or not, or even though it might have become joined by 
accretion after its formation to the north bank, but there is not a 
suggestion in the evidence that such a fact ever occurred. On 
the contrary, the evidence indisputably shows that the north 
bank did not even move south simultaneously with the destruc- 
tion of the south bank but that it grew up in a long course of years 
by the slow and gradual deposit of alluvium. 



DISSENTING OPINION OF AMERICAN COMMISSIONER. 45 

The American Commissioner is constrained to hold, therefore, 
that the majority of the Commission have failed to apply to the 
case the express rules laid down by the Convention of 1884; and 
by this failure have departed from the terms of the submission 
and invalidated the award. 

A DEPARTURE FROM THE CONVENTION OF 1 889. 

In the opinion of the American Commissioner this failure 
becomes the more manifest by reference to the terms of Article 4 
of the Convention of 1889, to which, supplemented by the Con- 
vention of 1 9 10, this Commission owes its life. By that article, 
the very law of its being, this Commission when considering any 
alteration in the course of the river named, is confined "to decide 
whether it has occurred through avulsion or erosion, for the effects 
of articles 1 and 2 of the Convention of November 12, 1884." 
The American Commissioner conceives that this provision was not 
only declaratory and interpretative of the changes contemplated 
by the Convention of 1884, but that said clause is jurisdictional in 
so far as the powers of this Commission are concerned. 

In the opinion of the iVmerican Commissioner, the two govern- 
ments in the preamble of the Banco Treaty of 1905 again placed 
an authoritative interpretation upon the words "slow and grad- 
ual" in the Convention of 1884. In that treaty the two govern- 
ments, after reciting Articles 1 and 2 of the Treaty of 1884, ex- 
pressly declared that the changes whereby the so-called bancos 
had been formed were "owing to the slow and gradual erosion 
coupled with avulsion." That the erosive action thus referred to 
was and is far more rapid and violent than that which occurred in 
the Chamizal tract is unquestionable, but the Presiding Commis- 
sioner and the Mexican Commissioner observe, with reference to 
the investigations undertaken by the International Boundary 
Commission upon which the banco treaty was based, that 

The report rendered by the Commissioners to their respective 
governments in no way discloses any facts tending to show the 
nature and extent of the erosive changes, and properly so, because 
that was not material to the question to be decided. It is true that, 
by making a minute examination of the plans accompanying the 
report, the actual extent of the erosive changes might have been 
ascertained, but there certainly was nothing in the question sub- 
mitted to the governments for solution to necessitate, or even to 
suggest, such an inquiry. (Opinion, p. 34 [supra, p. 34].) 



46 chamizal arbitration: minutes of june io, 191 1. 

With all respect, it would seem that the question as to whether 
or not the changes which resulted in the banco formation were 
"slow and gradual" within the meaning of the Treaty of 1884, 
was so "material to the question to be decided" that if those 
changes were not " slow and gradual " there would in most instances 
have been no bancos to eliminate. It is true that the commis- 
sioners did not think it necessary to state in figures the rate of 
erosion on each banco, but the rate of erosion was obtainable by 
a casual examination of the maps and reports if the plenipoten- 
tiaries were interested in knowing the rate. Having the informa- 
tion before them they were free to use it or not in framing their 
language, but no rule either of logic or justice is perceived that 
would relieve them or the contracting parties from being held to 
the accountability which binds all other men when they use 
language in a legal document to express ideas. 

And again the American Commissioner feels constrained to say 
that he can not understand the method of the interpretation 
which gives such emphasis to the words "slow and gradual" in 
article 1 of the Treaty of 1884 as to override not only the ordinary 
rules of international law and the uniform construction placed 
upon the treaty by the International Boundary Commission since 
its organization and by agents and counsel for both parties before 
this Commission, but also what appears to him to be the plain and 
unmistakable intent of Article II to confine all "other changes" 
to the cutting of a new bed or the deepening of an existing channel, 
while the same words in the Banco Treaty of 1905, although 
entirely consistent with the purpose and scope of that treaty, are 
apparently deemed negligible and unimportant. 

The failure of the Presiding Commissioner to regard the Banco 
Treaty of 1 905 as placing an authoritative interpretation upon the 
words "slow and gradual" in the Treaty of 1884, appears all the 
more strange to the American Commissioner in view of the fact 
that the Presiding Commissioner, earlier in his opinion, in his dis- 
cussion of the retroactivity of the Treaty of 1884, attaches great 
weight to this same Treaty of 1905 because it provides for the 
elimination from the Treaty of 1884 of bancos formed prior to 
1884. The Presiding Commissioner has no difficulty in holding 
the governing minds of the two countries responsible for the 
language which they used in the Treaty of 1905 so far as it con- 
strues the Treaty of 1884 retroactively. He says: 

This recognition of the retrospective application of the Conven- 
tion of 1884 is not that of subordinates, but of the governments 



DISSENTING OPINION OF AMERICAN COMMISSIONER. 47 

themselves, which expressly adopted the views of the commission- 
ers as to the application of the Treaty of 1884 and as to the desira- 
bility of taking such cases, both past and future, out of the convention 
and substituting new provisions. (Opinion, p. 24 [supra, p. 27].) 

It is difficult to see why the plenipotentiaries should be charged 
with notice of the date at which these bancos were cut off and not 
of the rate at which they were formed. 

It should furthermore be remembered that in his opinion in 
Chamizal case No. 4 m 1896 the American Commissioner called at- 
tention to the rapidity of the erosion which has been recognized as 
slow and gradual in the case of the bancos and gave the figures of 
erosion in the case of one banco, the Banco de Camargo, eighty- 
seven meters a year, figures which exceed any erosion which could 
have taken place in the Chamizal tract, even on an assumption 
most favorable to the Mexican contention. In discussing the 
reports rendered by the Commissioners to their respective govern- 
ments in 1896, in which the American Commissioner asserted that 
if the erosion in El Chamizal was not slow and gradual, then a 
fortiori, the erosion which had formed the bancos in the lower part 
of the river could not be slow and gradual* the Presiding Com- 
missioner suggests that that report "was counteracted by the 
reply of the Mexican Commissioner, who argues that there was no 
similarity between the two cases," and deduces therefrom the con- 
clusion that "under these circumstances it is reasonable to con- 
clude that the Mexican Government adopted the view of their 
commissioner" (Opinion, pp. 34, 35 [supra, p. 34]). It is difficult 
to accept this conclusion in view of the fact that in drafting the 
Treaty of 1905 the Mexican Government brushed aside the dis- 
tinction sought to be established by its Commissioner and applied 
the provisions of the banco treaty to the Rio Grande in the upper 
as well as in the lower division of the river "throughout that part 
of the Rio Grande * * * which serves as a boundary between 
the two nations." (U. S. Case, App., p. 87.) 

* The Presiding Commissioner has fallen into error (Opinion, p. 34 [supra, p. 34]) in suggesting that 
the American Commissioner in 1S96 compared the erosion at Chamizal to that which formed the bancos 
only, whereas the American Commissioner in his opinion was referring to the erosion at every bend in the 
river throughout the 800 miles where it flowed through alluvial formation. 

The following are the words used by him: 

"In the opinion of the United States Commissioner, if the changes at El Chamizal have not been 'slow 
and gradual' by erosion and deposit within the meaning of Article I of the Treaty of 1SS4, there will never 
be such a one found in all the 800 miles, where the Rio Grande with alluvial banks, constitutes the boun- 
dary, and the object of the Treaty will be lost to both governments, as it will be meaningless and useless, 
and the boundary will perforce be through all these Sco miles continuously that laid down in 1852, having 
literally no points in common, with the present river, save in its many hundred intersections with the 
river, and to restore and establish this boundary will be the incessant work of large parties for years, 
entailing hundreds cf thousands of dollars in expense to each Government and uniformly dividing the 
lands between the nations and individual owners, that are now, under the supposition that for the past 
forty years, the changes have been gradual, and the river accepted generally as the boundary, under the 
same authority and ownership; for it must be remembered that the river in the alluvial lands, which 
constitute 800 miles, has nowhere to-day, the same location it had in 1852." (Proceedings of International 
Boundary Commission, vol. 1, p. 93.) 



48 CHAMIZAL arbitration: minutes OF JUNE 10, 191 1. 

The irresistible logic with which the Presiding Commissioner 
drives home the conclusion that the ambiguity, if any, in the Con- 
vention of 1884, in so far as the retroactivity of the convention is 
concerned, is removed by the practical construction placed upon 
that treaty by the contracting parties as well as by the language of 
the Treaties of 1889 and 1905, compels the admiration and ap- 
proval of the American Commissioner, but he can not expel from 
his mind that the conclusion from the same course of practical con- 
struction and subsequent treaty interpretation applies with equal 
force to the ambiguity, if any, of the Convention of 1884 when deal- 
ing with erosion and avulsion. 

The words " slow and gradual " are relative terms. The Treaty 
of 1884 was drafted specifically for the Rio Grande, and its changes 
at the point in question have been slow and gradual compared to 
other changes both in the upper and lower river or when compared 
with the progress of a snail. 

AWARD VOID FOR UNCERTAINTY. 

The award of the Presiding Commissioner and the Mexican Com- 
missioner, constituting a majority of the Commission, is to the 
effect that the 

international title to the portion of the Chamizal tract lying 
between the middle of the bed of the Rio Grande, as surveyed by 
Emory and Salazar in 1852, and the middle of the bed of the said 
river as it existed before the flood of 1864, is in the United States 
of America, and the international title to the balance of the said 
Chamizal tract is in the United States of Mexico. (Opinion, p. 36 
[supra, pp. 35-36].) 

The American Commissioner is of opinion that this award is void 
for the further reason that it is equivocal and uncertain in its terms 
and impossible of accomplishment. The Presiding Commissioner 
and the Mexican Commissioner "conceive that it is not within 
their province to relocate that line [the line of 1864], inasmuch as 
the parties have offered no evidence to enable the Commissioners 
to do so." (Opinion, p. 36 [supra, p. 35].) It is submitted, with all 
respect, that the fact that the parties have offered no evidence of 
the location of the line of 1864 is suggestive of the fact that it was 
not within the contemplation of the parties that the tract should be 
divided. Perhaps the reason that agent and counsel on either 
side, even after the suggestion of the court as to the possibility of 
dividing the tract along the channel of 1864, did not ask leave to 
offer evidence for the purpose of relocating this channel was be- 
cause they were and are well aware that it would be as impossible 



DISSENTING OPINION OF MEXICAN COMMISSIONER. 49 

to locate the channel of the Rio Grande in the Chamizal tract in 
1864 as to relocate the Garden of Eden or the lost Continent of 
Atlantis. 

In concluding this dissenting opinion, it is impossible to refrain 
from pointing out the unfortunate results which this decision 
would have in the contingency that the two countries should at- 
tempt to follow it in interpreting the Treaty of 1884 in other cases. 

The American Commisssoner does not believe that it is given 
to human understanding to measure for any practical use when 
erosion ceases to be slow and gradual and becomes sudden and 
violent, but even if this difficulty could be surmounted, the prac- 
tical application of the interpretation could not be viewed in any 
other light than as calamitous to both nations. Because, as is 
manifest from the record in this case, all the land on both sides 
of the river from the Bosque de Cordoba, which adjoins the 
Chamizal tract, to the Gulf of Mexico (excepting the canyon re- 
gion) has been traversed by the river since 1852 in its unending 
lateral movement, and the mass, if not all, of that land is the 
product of similar erosion to that which occurred at El Chamizal, 
and by the new interpretation which is now placed upon the 
Convention of 1884 by the majority of this Commission, not only 
is the entire boundary thrown into well nigh inextricable confusion, 
but the very treaty itself is subjected to an interpretation that 
makes its application impossible in practice in all cases where 
an erosive movement is in question. 

The Convention of 19 10 sets forth that the Uuited States and 
Mexico ' ' desiring to terminate * * * the differences which 
have arisen between the two countries," have " determined to refer 
these differences" to this Commission enlarged for this purpose. 
The present decision terminates nothing; settles nothing. It is 
simply an invitation for international litigation. It breathes the 
spirit of unconscious but nevertheless unauthorized compromise 
rather than of judicial determination. 

(Signed) Anson Mills. 

INDIVIDUAL OPINION OF THE COMMISSIONER OF MEXICO. 

(Translation.] 

The Mexican Commissioner respectfully begs to differ from the 
opinion of his learned colleagues in definitely judging the subject 
of the Chamizal in the matter of the fixedness and invariability of 

5591— 11 4 



50 chamizal arbitration: minutes of june io, 191 1. 

the boundary line of 1852, and also in regard to the retrospective 
application of the Convention of 1884, as it does not appear to him 
that the findings of the majority on both points are supported by 
the record and the arguments that figure in the proceedings. 

The agent of the Government of Mexico has left established a 
fundamental axiom in right — that the alluvium should be gov- 
erned and qualified by the laws in force at the time in which it 
commenced to form. In the depth of this principle is enveloped 
the universal maxim of the irretroactivity of the laws, unless it is 
stipulated expressly in them, or that at the time the phonomena 
in question took place there should have been no provisions to 
cover it. 

Neither of the two exceptions cited occur in the case of the 
Chamizal, as in 1852 there existed a perfectly defined law to apply — 
the Treaty of Guadalupe. The Convention of 1884 evidently does 
not contain any direct and precise stipulation as to its retrospec- 
tive power. 

My first proposition, according to this, is that the Treaty of 1848 
stipulated in a clear and precise manner a fixed or "limited" line. 

The agent of Mexico expounds in methodical and sufficient form 
the classical division, universally adopted, of property in two large 
categories: "arcifinious" property and "limited" property. The 
characteristic of the former is to be determined in one of its bound- 
aries by natural geographical" accidents," such as mountain ranges, 
rivers, etc., which by their manifest discernibility on the ground 
constitute within themselves limited lines, which in order to desig- 
nate perfectly it is sufficient to mention. In order that the prop- 
erty may be in the second category, evidently, it is sufficient that 
it does not pertain to the first, although, further than that it is 
indicated characteristically as that whose boundaries in all senses 
are marked by means of definite and permanent lines or signs. 

Now, it has remained undenied in this judgment that the 
Treaty of 1848 directed the general setting of landmarks on the 
dividing line between Mexico and the United States, and the mark- 
ing of these landmarks on precise and authentic plans, as well as a 
religious conservation in the future of the line so fixed, and it is 
also shown in the record, without discussion on the part of Amer- 
ica, that the commissioners charged with executing this conven- 
tion, complying with the letter of their instructions, agreed, 
ordered, and carried to a conclusion the erection of permanent 



DISSENTING OPINION OF MEXICAN COMMISSIONER. 5 1 

monuments, identical in character to those of the non-fluvial 
line, along the length of the fluvial, and that this operation was 
known to the two governments and was not disapproved by 
them, to which they gave account of all their acts. 

In the matter of the Chamizal, there is data to prove that at 
least two of these monuments (of iron) were placed; one on the 
right bank of the river, in what is now Cuidad Juarez, and another 
on the left, in Magofnnsville, now part of El Paso. That these 
monuments were properly "mojoneras" (land-marks) and not 
signs of topographical reference is undeniable, for the reason that 
they did not connect topographically with the lines of the survey. 
Their sole object was to "show the limits of both republics," and 
their erection would have been absolutely unnecessary in case 
of an arcifinious boundary. 

It is the opinion of the majority of the commissioners that the 
declaration in the Treaty of 1853 (Article I) that the limits 
between both countries should follow the middle of the Rio Bravo, 
as stipulated in that of 1848, is the best proof that the former 
treaty created an arcifinious and not a fixed line ; because, it is 
said, if the line had been fixed before 1853, it would not have been 
affirmed then — both governments knowing, as they did know, 
that the river had changed its course between the former and the 
latter treaty — that the center of the bed would continue being the 
point of separation between the eminent domains of the two 
nations. The Commissioner for Mexico feels it necessary to state 
that he fails to see the force of the argument, because in his con- 
ception the Treaty of 1853 had three objects: first, to establish a 
boundary line in the territory between the Rivers Bravo and Colo- 
rado; second, to finish the establishment, where it had not already 
been concluded, of that portion of the line of 1848 not affected by 
the Gadsden Treaty; third, and very important, to ratify the por- 
tions already established of the line of 1 848 ; and the new commis- 
sioners, to whom was entrusted the execution of Article I of the 
agreement, were given entire and final powers for each and every 
one of the three parts of their trust. Therefore, when in 1857 
they jointly delivered to their governments as result of their labors 
a collection of plans in which was clearly shown the position of 
the dividing line, according to the last treaty, that line (it might 
have been run in 1849, in 1852, or in any other year) remained 
adopted as the sole and invariable line of separation between the 
two republics. 



52 CHAMIZAL ARBITRATION: MINUTES OF JUNE IO, 1911. 

In the particular matter referred to the judgment of this Arbi- 
tration Court, the river has varied after the survey of 1852 and 
before the signing of the Convention of La Mesilla, and the new 
commissioners knew it perfectly. What should they have done 
had they believed the Treaty of 1853 considered the river as arci- 
finious? Undoubtedly resurveyed map No. 29, in order to clearly 
mark out upon it the new and exact position of the dividing line ; 
but as they did not so understand it, but knew that the line of 1852 
ought to be fixed, and that the new line to be established after 1853 
not having been already established before, would also have to be 
fixed, they comprehended that, assuming that in 1852 the position 
of said line in this valley had been finally decided and marked on 
official maps adopted by both commissions, the Treaty of 1853 
imposed upon them the obligation of ratifying it, and thus they 
did, signing in 1855 the final sheet No, 29, notwithstanding the 
fact that the river marked on it did not then correspond with the 
true position which its course followed in the valley in 1855. This 
is the reason why the argument of his colleagues works in an oppo- 
site sense in the mind of the Mexican Commissioner than it does 
in theirs. 

The opinion of the majority of the Honorable Commissioners 
is that the subsequent acts of the two governments show: on the 
part of the United States, an invariable judgment in favor of the 
interpretation of the Treaties of 1848 and 1853 a s establishing an 
arcifinious limit in the fluvial portion of the boundary common to 
them; on the part of Mexico a lack of determination between the 
idea of the fixed line and a fluvial arcifinious limit. 

Admitting, as the Mexican Commissioner clearly does, the 
doctrine of this Court that isolated expressions of officials of one 
or the other governments do not in any manner constitute an 
international obligation binding upon the nations whom they serve 
respectively, it is right to pass over the diverse opinions emitted 
by Messrs. Lerdo de Tejada, Frelinghuysen, etc., and look exclu- 
sively to the correspondence and negotiations sanctioned interna- 
tionally and recognized by both governments, in order to ascertain 
their attitudes in the matters under discussion, and even then in 
only their vital points and not in their minor or incidental points. 

It is not shown in the record, that there was correspondence or 
negotiations of that character touching the interpretations of the 
Treaties of 1848 and 1853, but on three occasions: in 1875 between 
Mr. Mariscal and Mr. Cadwalader; in 1884, between Mr. Romero 
and Mr. Frelinghuysen, in connection with the island of Morteritos 



DISSENTING OPINION OF MEXICAN COMMISSIONER. 53 

and in the same year and between the same last named persons, 
concerning the preliminaries of the Convention of 1884. 

In 1875 the allusion to the fixed line, in the past, appears evident 
by the terms of Article II, both of the draft for a convention pre- 
sented by Mr. Mariscal to Mr. Cadwalader on March 25th and a 
second draft dated December 2d of that year. In both reference 
is unmistakably made to the dividing line astronomically fixed by 
the boundary commission of both governments in 1852, which 
runs in the middle of the current of the rivers, according to their 
course at the time of their survey. 

In regard to the case of Morteritos, the terms of the decision of 
the majority of this Tribunal relieve the Mexican Commissioner of 
the necessity of insisting here that the uniform attitude then 
shown by the Mexican Government was in the sense of the fixed 
line, inasmuch as it is thus recognized in such document. 

Lastly, in the negotiations of the Convention of 1884, a reading 
of the instructions which guided Mr. Romero, and of his corre- 
spondence with the American Department of State, does not leave 
room for doubt as to the position adopted by Mexico in regard to 
the nature of the boundary line from its original demarkation 
until then, — that it was fixed and invariable and constituted to 
Mexico in her northern frontier an "ager limitatus," as these 
properties are understood by civil and international law. 

It being established that until 1884 Mexico considered the line of 
1852 as fixed, is it admissible that in that year she would negotiate a 
treaty converting it into an arcifinious boundary with retroactive 
effect? If the declarations of the Mexican negotiator, Don 
Matias Romero, are not sufficient to destroy all doubt in this 
respect, the following consideration would be more than suffi- 
cient: that Mexico could not in any manner have adopted a 
new boundary — supposing that the river had then ceased to be 
the boundary and was again taken as such — without protecting or 
ceding conveniently or by means of an express clause free from con- 
fusion, the rights of individuals and of the Mexican nation, to the 
lands embraced between the fixed line which was abandoned and 
the new fluvial line then adopted. As no such clause existed in the 
Convention of 1884, in view of the fact that all the language of it 
refers indisputably to the future ; and considering the nature of the 
negotiations that preceded it, the Mexican Commissioner feels him- 
self unable to accept the possible retroactivity of that convention. 

Then, the opinion of the majority of the Honorable Commis- 
sioners is that the application which both governments made of 



54 chamizae arbitration: minutes of june 10, 191 1. 

the Convention of 1884 to the case of San Elizario and the fifty- 
eight original bancos of the lower Bravo is another proof, that the 
principle of the retroactivity had firm connection in the mind of 
the Mexican Government in respect to the application of that con- 
vention. From such an opinion also dissents, and, he believes with 
good reason, the Mexican Commissioner. 

In the first place, there is no reason to infer from the fact that the 
Mexican Commissioner in 1894 presented the commission with 
the case of San Elizario, that the Government of Mexico, by this 
act, knowingly put under the jurisdiction of the Treaty of 1884 
the changes which occurred in the Bravo since 1857. The only 
thing that the cited procedure indicates is that Mexico submitted 
that question to the jurisdiction of the bouudary commission estab- 
lished by the Treaty of 1 889. Now, the powers of such commission 
were not limited in any manner to the application of the principles 
of 1884, but they covered and they were declared "exclusive," 
the resolution of all the questions or difficulties that in the future 
might arise between the two countries and in which affected the 
position of the dividing line, subject to the approval of both gov- 
ernments. In San Elizario, without doubt, it was endeavored to 
ascertain if that so-called "island" pertained to Mexico or to the 
United States, and it certainly was the commission who had to 
decide it, whether the theory of a fixed or of an arcifinious line in 
regard to that ground was in force. The case was discussed, then, 
in quality of question solely, and not of erosive or avulsive change. 
It is certain that the commission decided it, taking into consider- 
ation certain very slight alluvial changes, occurring between 1852 
and 1857; but taking the terms of their judgment, and considering 
that the essential of it was the definition of the nationality of the 
ground, that was that which was asked of the commissioners, it is 
not to be believed that the Governments paid any attention to the 
insignificant divergences, shown by the consulting engineers 
between the courses of the river, as given by Salazar, Emory, and 
the survey of 1890, because such divergences might very well 
appear to be due to the imperfection of the methods employed by 
one or the other of the engineers, notwithstanding what the later 
commission said to the contrary. 

Now, in regard to the resolutions adopted by the two Govern- 
ments, in the matter of the bancos in the lower River Bravo, it is 
sufficient to destroy the inference that is alleged to be deduced as 
to the retroactivity of the Convention of 1884, to say that the 
treaty in virtue of which it has been possible to approve said 



DISSENTING OPINION OF MEXICAN COMMISSIONER. 55 

resolutions, expressly adopted as retroactive certain principles which 
called for "elimination" of those bancos in all those parts of the 
international dividing line which are constituted by the centers of 
the beds of the Bravo and Colorado rivers. This condition of the 
internationality of the river remained plainly decided by that 
treaty in regard to the stretch of the Bravo embraced between its 
mouth and the confluence of the San Juan, due to the explicit 
adoption of the central line of its course of 1897 as boundary 
between the two countries and to the declaration that in future 
that boundary would follow the deepest channel, which was equiva- 
lent to converting into arcifinious this stretch of the Bravo. In 
regard to the rest of this river and to the Colorado, the principle 
of elimination will also be applicable with retroactive force in all 
those parts in which their course may be international, and in no 
other, unless in the future some arrangement may be made in 
virtue of which in the whole course of the Bravo and Colorado the 
fixed boundary of 1852 may be abandoned, and, as was done in 
the lower river, the real watercourse adopted as the new inter- 
national boundary. In any event, the retroactivity that has 
resulted or might result from this should be attributed solely and 
directly to the express and clear clauses of the Convention of 1905, 
that adopt it as a rule, but never to the power, direct or indirect, 
of that of 1884. 

Such are the ideas of the Mexican Commissioner on the fixedness 
of the dividing line of 1852, and the irretroactivity of the Con- 
vention of 1884; but as he has been defeated in both points by the 
majority of the Court, and the latter has left established that as a 
result of the sequel of the case, the only principles which should 
govern are those contained in that Convention of 1884, this Com- 
missioner believed it to be his duty to amply express his opinion 
from the new point of view and had the fortune to have the 
Presiding Commissioner agree with him in regard to the matter in 
which the convention referred to should be applied to the case, 
which has permitted the Court to dictate by majority a final sen- 
tence, that would otherwise have been impossible, since the attitude 
of the Commissioner of the United States in regard to such appli- 
cation diverges diametrically from that of the Presiding Commis- 
sioner. 

This opinion and the context of the sentence in the points agreed 
to, leave sufficiently and totally explained the position of the 
Commissioner of Mexico in the present arbitral judgment. 

(Signed) F. B. Puga. 



MINUTES OF MEETING OF THE JOINT COMMISSION, JUNE 15, 1911. 

El Paso, Texas, June 15, ign. 

The Joint Commission met at the Sheldon Hotel, at 10 o'clock 
a. m. (meeting being held in Commissioner Mills' room owing to 
his illness). Present, the Commissioners, Secretaries, Agent of the 
United States and Assistant Agent of Mexico. 

The Presiding Commissioner stated that the Chamizal case sub- 
mitted to the Commission for decision having been discussed at 
length by the Commissioners an award had been made by a 
majority of their votes. 

Then, the members of the Commission proceeded to sign the 
award, and the journal of the proceedings in the case, and the 
Mexican and American Commissioner submitted dissenting opin- 
ions, all of which are made a part of this journal. 

A copy of the award was delivered to the Agent of the United 
States and the Assistant Agent of Mexico. 

The Agent of the United States asked permission to make the 
following statement: 

May it please the Commission : Although I have not had oppor- 
tunity to consult with my government and must therefore act 
upon my own motion, subject to the consideration and action of 
my government, I deem it my duty, in order to safeguard the 
rights of the United States in the premises, with all deference, to 
make suggestion of protest against the decision and award which 
has just been rendered, upon the following grounds: 

1. Because it departs from the terms of submission in the fol- 
lowing particulars: 

a. Because in dividing the Chamizal tract it assumes to decide 
a question not submitted to the Commission by the Convention of 
1 910 and a question the Commission was not asked to decide by 
either party at any. stage of the proceedings; 

b. Because it fails to apply the standard prescribed by the 
Treaty of 1884; 

c. Because it applied to the determination of the issue of erosion 
or avulsion a ruling or principle not authorized by the terms of 
the submission or by the principles of international law or em- 
braced in any of the treaties or conventions existing between the 
United States and Mexico; 

(56) 



PROTEST OF AMERICAN AGENT. 57 

d. Because it departs from the jurisdictional provision of the 
Treaty of 1889 creating the International Boundary Commission. 

2. Because the award is uncertain and indefinite in its terms, 
incapable of being made certain, and impossible of application. 

3. Because the award fails to "state the reasons upon which it 
is based" in this that it fails to state specifically whether the 
alleged rapid and violent erosion by which it finds a portion of the 
Chamizal tract was formed comes within the terms of the Treaty 
of 1884 or is governed by the principles of international law, and 
fails to state reasons for the inferential finding that it comes within 
the provisions of the Treaty of 1884, in spite of the fact that these 
questions were repeatedly argued by agent and counsel for the 
United States. 

4. Because of essential error of law and fact. 

The Mexican Commissioner expressed the thanks of his govern- 
ment for the courtesy of the Government of the United States in 
permitting the use of the Federal court-room for the meeting of 
the Joint Commission. 

The special duties of the Commission under the Treaty of June 
24, 1 9 10, having been completed, the Presiding Commissioner 
declared the Commission adjourned without day. 

E. LaflEUR. 
Anson Mills. 

F. B. Puga. 
M. M. Velarde, 

Secretario. 
Wilbur Keblinger, 

Secretary. 

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